18799
LEGISLATIVE COUNCIL
Wednesday 19 October 2005 ______
The President (The Hon. Dr Meredith Burgmann) took the chair at 11.00 a.m.
The Clerk of the Parliaments offered the Prayers.
AUDIT OFFICE
Report
The President tabled, pursuant to the Public Finance and Audit Act 1983, a performance audit report of the Auditor-General entitled "Oversight of State Owned Electricity Corporations: NSW Treasury", dated October 2005.
Ordered to be printed.
TABLING OF PAPERS
The Hon. Tony Kelly tabled the following paper:
Annual Reports (Statutory Bodies) Act—Report of NSW Nursery Industry Services Committee for the year ended 30 June 2005.
Ordered to be printed.
PETITIONS
Same-sex Marriage Legislation
Petition opposing same-sex marriage legislation, received from Reverend the Hon. Dr Gordon Moyes.
Unborn Child Protection
Petition requesting legislation to protect foetuses of 20 weeks gestation and to make resources available for post-abortion follow-up, received from Reverend the Hon. Dr Gordon Moyes.
Desalination and Sustainable Water Supply
Petition opposing construction of a desalination plant in Sydney, and requesting a sustainable water supply through harvesting and recycling of water, and water efficiency, received from Ms Sylvia Hale.
BUSINESS OF THE HOUSE
Suspension of Standing and Sessional Orders
Ms SYLVIA HALE [11.11 a.m.]: I move:
That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Members' Business item No. 183 outside the Order of Precedence, relating to dental health care in New South Wales, be called on forthwith.
This motion is urgent. It was prompted by the Minister for Health's response to a question I asked in this House one week ago. This motion is urgent because I believe the Minister's reply clearly demonstrated his contempt for members of this House as well as for any notion of accountability. This motion is urgent because the Minister's response was, I believe, deliberately designed to create a false impression that lists of people waiting for public dental treatment were available on the department's web site, when such was not the case. This motion is urgent because I believe the House should deal now with the matter of the Minister's misleading or, at best, 18800 LEGISLATIVE COUNCIL 19 October 2005 calculatedly ambiguous reply, rather than quietly acquiesce in his abuse of the question time process, a process which lies at the heart of responsible, accountable, democratic government.
This motion is urgent because, at a time when this Government's lack of transparency and openness are being questioned throughout the community, it is important that this House underscores the importance of question time as one means of delivering on the principles of transparency and accountability. A fundamental aspect of the democratic process and the Westminster system of government is that Ministers should deliver truthful, accurate and frank answers to questions. This matter is urgent because it calls on the Minister to explain his response to my question and gives him the opportunity to do so now, one week after I asked the question.
I am aware that the Standing Committee on Social Issues is currently conducting an inquiry into dental services in New South Wales. I have no wish to in any way comment upon the committee's deliberations, and I will not do so. But the social issues committee is not a place in which to pursue the question of the accuracy or otherwise of the Minister's reply to my question. This House is the place where that issue must be pursued, and now is the time to do it. As I have said, I believe the Minister attempted to mislead the House by implying that the Government is taking the provision of public dental health services seriously and that comprehensive data is available on the department's web site, when that is not the case. There are other aspects to my motion that also need to be dealt with as a matter of urgency, but they will be canvassed in the course of the debate. Suffice it to say that public dental health services are in crisis, especially in rural areas, and the Government needs to confront this issue now and act immediately.
The Hon. JOHN HATZISTERGOS (Minister for Health) [11.14 a.m.]: I would be happy to appear before the upper House committee that is investigating this issue. I love attending parliamentary committees. The last time I appeared before an estimates committee I was told I was not required to go back. I would be quite happy to attend the social issues committee and answer Ms Sylvia Hale's questions in relation to dental services. In fact, a substantial submission has been put before the committee. But I do not see why the urgency of the matter is such that the issues need to be canvassed in this debate. I will not be a research service for the Greens. The motion they put forward provides an answer to the question posed by Ms Sylvia Hale. If she was able to do her research and find an answer to her question, why is she now wasting my time and the time of the House?
The Hon. Dr PETER WONG [11.15 a.m.]: I cannot support the motion. First, it is not urgent that the social issues committee inquire into the issue. Second, it is understood that private members' day is Thursday, not Wednesday, and to breach that protocol without consulting members is totally inappropriate.
Reverend the Hon. FRED NILE [11.16 a.m.]: The Minister has indicated that he is happy to appear before the Standing Committee on Social Issues to discuss the issues raised by Ms Sylvia Hale. One of committee's terms of reference is that it inquire into and report on the demand for dental services, including issues relating to waiting times for treatment. This matter is before the committee. Prior to this debate the Minister indicated to me, as he said earlier in the House, that he is willing to appear before the social issues committee. I believe that is the way the matter should be dealt with.
Question—That the motion be agreed to—put.
The House divided.
Ayes, 20
Mr Breen Miss Gardiner Mr Pearce Dr Chesterfield-Evans Mr Gay Ms Rhiannon Mr Clarke Ms Hale Mr Ryan Mr Cohen Mr Jenkins Mr Tingle Ms Cusack Mr Lynn Tellers, Mrs Forsythe Ms Parker Mr Colless Mr Gallacher Mrs Pavey Mr Harwin
Noes, 20
Ms Burnswoods Mr Hatzistergos Mr Roozendaal Mr Catanzariti Mr Kelly Ms Sharpe Mr Costa Mr Macdonald Mr Tsang Mr Della Bosca Reverend Dr Moyes Dr Wong Mr Donnelly Reverend Nile Tellers, Ms Fazio Mr Obeid Mr Primrose Ms Griffin Ms Robertson Mr West 19 October 2005 LEGISLATIVE COUNCIL 18801
The PRESIDENT: There being 20 ayes and 20 noes, there is an equality of votes. In keeping with convention, I cast my vote with the noes and declare the question to be resolved in the negative.
Motion negatived.
DEFAMATION BILL
Second Reading
Debate resumed from 18 October 2005.
Ms LEE RHIANNON [11.23 a.m.]: Defamation is an issue that is very relevant for the Greens because increasingly our local councillors are facing defamation cases, not because they have done anything wrong but because they are doing their job. This happens because often developers who are very determined to bring forward large-scale developments in local council areas come up against progressive members of local councils who want more transparency, who want their local community to have a fair deal, and who want to ensure that before certain developments go ahead their environmental and social impacts are thoroughly looked at.
Because of the endeavours of our local councillors some unscrupulous individuals are bringing spurious defamation actions. I do not imagine that this is something that will be reduced in the near future but we are certainly conscious that the law has a critical role to play in this respect. If we tightened up our defamation laws in this State we could reduce the number of cases of strategic litigation against public participation [SLAPP] suits, which is something that is becoming more common in our community as people believe that they have, quite rightly, a right to speak out about a whole range of inequities.
Last night I was in the midst of discussing how defamation laws, while necessary, are not equally accessible to all in our society. The fact that defamation law is said to be uniform throughout Australia misses the real story, and that is the inadequate access people have to the courts. This bill and this Government have done little to solve the problem. The Government has continued to protect the interests of the big end of town and ignored others in our community who have far less access to power and money. The Greens support the use of defamation laws where there is a real threat to a person's reputation from unfounded and spurious allegations.
My colleague Mr Ian Cohen has gone through a number of defamation cases and gained a wealth of experience in this area. He won an out-of-court settlement from the Daily Telegraph over an article by Piers Ackerman that clearly defamed him. After going through an extremely excruciating court process over a number of years, he received an apology, which was printed in the Daily Telegraph. But it was small compensation for the suffering he had experienced as a public figure who had been clearly defamed. The Greens are also well aware that defamation laws are often misused to intimidate individuals and stop them speaking out against some of the many injustices in our society.
Open debate in our society is essential. Defamation law can be used to discourage meaningful discussion about critical issues and to silence those who wish to reveal failings of people in positions of influence. My colleague Mr Ian Cohen has been battling developers up and down the New South Wales coast for decades and has much first-hand experience in how the defamation process can be misused. That experience is extending to many of our local councillors. Mr Ian Cohen has spoken on a number of occasions in this House about the harrowing experience of defamation actions in which people have made utterances in the public interest and have been dragged through a court case, often on the most spurious of charges.
Mr Ian Cohen's experience is not unique to Greens members of Parliament. I know of at least three Greens councillors who in recent years have been subject to defamation actions, and these actions have been brought purely to silence them. The Greens involvement in local government is growing rapidly. People are voting for us because they want representatives who are willing to provide an effective voice against overdevelopment and other excesses perpetrated by the major parties in this area of government. One response has been for defamation law to be used as a vehicle by developers and local politicians to silence the voice of the Greens in revealing corrupt and grubby practices that, sadly, very often go hand in hand with local government.
While powerful individuals can use defamation law to silence criticisms, corporations in recent times have turned to other areas of the law to commit what commentators have termed "legal blackmail". Tort 18802 LEGISLATIVE COUNCIL 19 October 2005 litigation in the form of SLAPP suits has been used by corporations in Australia since the 1990s. It is one of those very unfortunate aspects of American life that has been imported into this country. SLAPP suits are brought by corporations or sometimes by wealthy individuals to silence critics. The common theme in SLAPP suits is an attempt to silence critics.
For the Greens, the obvious example is the action commenced by Gunns in December 2004 against 20 individuals and organisations, including Senator Bob Brown, Greens member of the Tasmanian Parliament Peg Putt, the Wilderness Society, Doctors for Forests, film-makers and many others. The original writ alleges that these 20 conservationists had damaged Gunns' profits and reputation to the tune of $6.9 million. Gunns, the biggest native forest logging company in Australian and the biggest hardwood chip company in the world, is attempting to silence the Greens and many others and stop them speaking out about Gunns' crippling and environmentally destroying actions. Gunns seeks to stop campaigns to save our precious forests.
We will not be silenced by such actions, but Gunns has been successful in diverting precious resources that our community would have much rather seen spent on campaigning against logging and other environmental threats. Instead, time, funds and energy have been diverted to fight an action in the Supreme Court of Victoria. Gunns' original 218-page writ includes a raft of disparate allegations, including defamation. The company claims to have lost millions in lost productivity and bad publicity. John Quiggin, from the University of Queensland, wrote about SLAPPs in July this year in the Australian Financial Review and observed:
A particularly disturbing feature of the Gunns lawsuit is the way it mixes up allegations of criminal damage, such as the sabotage of logging equipment, with a civil case that is primarily based on alleged defamation.... As it is, the protection of legal proceedings permits the plaintiffs, while alleging defamation, to make accusations that would themselves be defamatory in ordinary circumstances, without any apparent avenue for redress.
John Quiggin concludes his article with the remark that:
Gunn's action in this matter is a clear indication that allowing defamation action by corporations does more harm than good.... Companies like Gunns have ample resources to defend themselves against their critics in the open marketplace of public opinion. They do not need the courts to do their job for them.
As noted by "Now We the People", "These suits are rarely intended to actually win, 77% of SLAPP suits in the US lose, but to preoccupy protestors and movements, transforming public debates into lawsuits.
By using SLAPPs the companies not only often lose financially and legally, but they lose the PR war. Many people have commented that in serving this writ Gunns are handing the issue to the protestors and groups. The heavy-handed tactic sets up a David vs Goliath scenario and puts the issue of logging Tasmanian forests back on the agenda.
A number of jurisdictions in the United States of America have now enacted legislation against these kinds of SLAPP suits to guard against the erosion of public participation and debate. The Greens have tabled anti- SLAPPs legislation in the Tasmanian Parliament and we are planning to do the same thing in the New South Wales Parliament. It should be an embarrassment for the New South Wales Government that it has not acted earlier to do this job and that it has now been left behind by the Greens moving on this important issue. I would like to place on record an observation of Tom Molomby, SC, on this new defamation bill. Mr Molomby has a reservation about clause 28, which provides a defence to defamation if the matter was contained in public documents.
The new provision says it is a defence to the publication of defamatory matter if the defendant proves that the matters were contained in a public document or a fair copy of a public document, or a fair summary of, or a fair extract from, a public document. A public document is defined in this bill to include "any document issued by the government (including a local government) of a country or by an officer, employee or agency of the government, for the information of the public". The old Defamation Bill had a similar section protecting the publication of various official documents, but this bill expands the definition of what is a public document, which, in the opinion of Tom Molomby, QC, would seem to include a wider range of material such as press releases that would not have been protected by the old section and which could be used on occasions in a partisan and damaging way. I will conclude with an extract from Brian Walters excellent book, Slapping on the Writs: Defamation, Developers and Community Activism. Brian suggests that Australia has yet to strike the right balance between protecting reputations and free speech. He observed:
One of the main vehicles for silencing debate is the defamation writ. In striking the balance between protecting individuals from defamatory statements and protecting the right to free speech, Australia is out of line with the rest of the developed world. There is much more liberty in the United States and in Europe to speak out on issues of public importance. Indeed, most developed countries have a constitutionally recognised right of free speech. Australia does not. 19 October 2005 LEGISLATIVE COUNCIL 18803
The Greens will continue to work to reform the legal system so that people who validly should be protected by defamation law, where their reputation is subject to unfair attack, can access the system and not be deterred by cost, complexity and court cases that drag on for years. We also need, as a society, to prevent large, powerful individuals and corporations from using their position and the law to silence critics, who rightly speak out against unfair or unsavoury practices. A lot of reform is still needed in the area of defamation in this State and country.
The Hon. HENRY TSANG (Parliamentary Secretary) [11.35 a.m.], in reply: I thank honourable members for their contribution to the debate and for their support for the bill. The bill is based on the model defamation provisions that were endorsed by the State and Territory Attorneys General in November 2004. Prior to the endorsement, the model provisions were subjected to an extensive period of public consultation. This was to ensure that the new law would achieve the right balance between protecting reputation from unjustified attack and protecting freedom of expression. Reputation is an integral and important part of the dignity of the individual. Freedom of expression is essential to the proper functioning of parliamentary democracy. The protection of both these interests is notoriously difficult to reconcile in practice but absolutely vital to a free society.
Around the nation identical bills are being introduced and debated in State and Territory parliaments and soon the goal of uniform defamation laws will have been achieved. For the first time in 150 years there will be just one law to deal with defamation cases, not eight. Although some members of this House have noted there have had to be some changes to the New South Wales law as a consequence, the enormous benefits of having one uniform law for every Australian citizen cannot be denied. It is no exaggeration to say that the passage of this bill represents a very important milestone in Australian legal history. New South Wales, or more precisely Sydney, has long been regarded as the defamation capital of Australia, so it is most fitting that New South Wales is the first State to pass the new law.
I turn now to address specific matters raised by honourable members during debate on this bill. The Hon. David Clarke, on behalf of the Opposition, raised some issues with respect to juries that need to be clarified. The model defamation provisions allow parties to elect to have proceedings determined by a jury unless the court orders otherwise. In those jurisdictions, such as South Australia where civil juries were abolished many years ago, they will not be reintroduced for the mere handful of defamation cases that come before those courts each year.
The absence of juries in South Australia will not detract in any way from the uniformity of the scheme. The same substantive law will apply to determine liability and defences wherever a defamation case is heard. It will make no difference whether a case is heard in Perth, Adelaide or Sydney: liability will be determined the same way, the defences will be exactly the same and the same remedies will be available in each jurisdiction. The Hon. Lee Rhiannon, in opposing the right of small businesses to sue, seems to have forgotten the debate on the Defamation Amendment Bill 2002. During that debate her colleague the Hon. Ian Cohen said:
The removal of small business owners' right to defend their trading name through the law of defamation is particularly unjust. Small businesses have neither the resources or the time to defend their name in the public arena through public relations or counter advertising …
The Greens, including Ms Lee Rhiannon, supported the small business exemption when it was introduced in 2002. So I find her sudden opposition to an amendment that has been part of New South Wales law for three years baffling, to say the least. Finally, the Hon. Dr Arthur Chesterfield-Evans and the Hon. Peter Breen raised concern about the change to the justification defence in New South Wales. The first point I make is that there cannot possibly be a uniform defamation scheme if New South Wales persists in being the only State or Territory in the country with a defence of "truth and public interest". The defence, which is unique to New South Wales, simply had to change if we were to achieve the goal of uniformity.
The second point I make is that the common law defence of truth alone is not a novel defence. It has been the law for centuries in England, and it is the current law in Victoria, Western Australia, South Australia and the Northern Territory. It is important for honourable members to understand that the adoption of the truth alone test in New South Wales will not change the fact that if an allegation is found to be defamatory then it will also be presumed to be false and the onus will fall on the defendant to prove that it is true. Therefore, if someone publishes a statement such as, "Joe Bloggs is the worst driver in Sydney", they will not be able to rely on the truth defence because there is no realistic way they can prove the truth of the statement to the court.
That is why publishers tend to rely much more heavily on the defences of comment and qualified privilege to justify the publication of otherwise defamatory statements. Honourable members may be assured 18804 LEGISLATIVE COUNCIL 19 October 2005 that under the new defamation law publishers will continue to risk significant liability if they publish defamatory material that they cannot prove to be substantially true. In order to reassure the House, particularly in light of the comments made by Reverend the Hon. Fred Nile, I can confirm that the passage of the Defamation Bill is the first and most critical stage of an ongoing defamation law reform process. The State and Territory Attorneys General are keen to ensure that uniformity of defamation law is maintained into the future.
They are also mindful of the need to ensure that the law keeps pace with developments in both society and communications technology. That is why the Ministers have agreed to endorse an intergovernmental agreement to support the future development of defamation law in Australia. Under this agreement, any proposed amendments to the model defamation provisions must be referred to and considered by the Standing Committee of Attorneys General. The passage of the Defamation Bill represents a major milestone in Australian legal history, and I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
RESIDENTIAL TENANCIES AMENDMENT (SOCIAL HOUSING) BILL
Second Reading
The Hon. HENRY TSANG (Parliamentary Secretary) [11.44 a.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The Residential Tenancies Amendment (Social Housing) Bill 2005 provides the legislative foundations to implement the NSW Government Plan for Reshaping Public Housing, announced by the then Premier on 27 April 2005.
These reforms are consistent with the Government's approach of delivering social justice through sound economic and program administration. The reforms focus on the fair allocation of scarce resources to those most in need in our community, the fostering of tenant responsibility, the promotion of efficient and effective operations and significant investment in the renewal of public housing.
The NSW Government is committed to allocating the valuable resource of public housing to those most in need because this approach delivers the best outcomes. Well-targeted public housing assistance provides the opportunity to maximise the outcomes of health, welfare, educational and support services provided to tenants by other NSW agencies. It provides the best outcome for Government and, more importantly, for the people in our community in greatest need.
The Reshaping Public Housing reforms announced in April this year are intended to ensure that public housing is well placed to assist those in greatest need. Over time, with declining Commonwealth contributions to public housing and with demographic and social changes, public housing has increasingly been focused on those most in need. The NSW Government's challenge is to make effective use of limited resources given the growth in demand for public services by those who require support.
The Reshaping Public Housing reforms respond to this challenge. In summary, they provide for:
• Eligibility for public housing to be based on the concept of housing need, rather than the traditional measure of income level as the primary eligibility criterion;
• An end to the policy of public housing for life to be replaced by assistance for the duration of the need through a range of renewable leases from two years to ten years;
• Changes to rent and water charging policies to ensure that public housing tenants make a fair contribution, with this contribution being invested—along with a significant level of State funding above CSHA requirements—to significantly renew the public housing asset base.
Much of this reform package can be implemented without legislative change. However, there is a need for legislative reform in relation to a number of key elements and to ensure a smooth implementation. This Bill proposes amendments to the Residential Tenancies Act 1987 and consequent amendments to three acts: the Housing Act 2001; the Aboriginal Housing Act 1998; and the Real Property Act 1900 to provide for these reforms.
In summary, this Bill achieves six key outcomes:
• It institutes a structured and fair process whereby the eligibility to continue in public housing can be assessed at the end of a lease and allows for termination where the tenant is determined to be no longer eligible 19 October 2005 LEGISLATIVE COUNCIL 18805
• It makes several amendments to the Residential Tenancies Act to ensure that tenants are treated consistently and the Department has appropriate operational flexibility following the introduction of fixed term leases
• It allows the Department to charge tenants for water usage costs
• It adds a number of tenant protection clauses in relation to the revision of market rents
• It is structured so that these changes also apply to the Aboriginal Housing Office and could potentially apply to Community Housing following consultation with that sector, and
• It amends the objects of the Housing Act and the Aboriginal Housing Act to ensure they are consistent with the reforms
I will discuss each of these outcomes in turn.
First, the Bill institutes a structured and fair process whereby the eligibility to continue in public housing can be assessed at the end of a lease and allows for termination where the tenant is determined to be no longer eligible.
Public housing is an important aspect of a fair society because it can offer so many opportunities to those most vulnerable in our society. Currently, however, if a person does not breach their tenancy agreement, they can enjoy the benefits of public housing for life, regardless of their housing need.
The Reshaping reforms change this. All new tenants from 1 July 2005 will be placed on a fixed term lease that will commence from some time after 1 July 2006. The terms of these tenancy agreements will vary from 2 to 10 years, depending on the type of need. The 10 year leases will be aimed at households which are most in need and will remain in that state for some time to come. These may include elderly pensioners or those with ongoing disabilities. The five year lease will be aimed at households such as families with children at school and whose circumstancesmay change when their children's schooling is complete or households in which the parents are undertaking training to move into the workforce or change jobs.
The two year lease is aimed at those households whose need for public housing is most likely to be of a passing nature. This may include young tenants with no family support or those experiencing homelessness and who are in need of time to address the issues they face. At the end of these agreements, tenants will have to demonstrate an ongoing need for public housing. This will provide fairer access to a social housing system that both promotes responsibility and meets the needs of the disadvantaged well into the future. In order to operationalise this, the social housing landlord (that is, the Department of Housing, the AHO or potentially a Community Housing operator) must be able to both review the ongoing eligibility of the tenant and, if they are no longer eligible, terminate their tenancy. This is a distinct and separate ground for termination that is not a part of the current Act and allows the Department to pursue its policy goals as earlier indicated.
Section 63B provides a new grounds for termination of a tenancy agreement where the tenant has failed the eligibility review. Tenancies will be renewed if the housing need still exists. It is, however, the duty of responsible Government to focus on those in serious need for public housing. As the current legislation does not allow for the social housing landlord to ask those no longer in need to move on following the review of a completed fixed term tenancy, it is this Government's duty to respond to this. If a tenant no longer has the housing need and could be accommodated in the private rental market, it is the public responsibility of the social housing landlord to ensure that the tenancy is not renewed in order to make room for someone in greater housing need
Section 63C of the Bill provides a process for the assessment of the eligibility of a tenant under a social housing tenancy agreement to continue residing in the social housing premises concerned. The criteria for eligibility will be established by guidelines approved by the Minister for Housing. This will allow the criteria for continued eligibility to vary from those used for assessing entry. For example, this could be used to permit tenants with moderate but insecure incomes—say from casual wages— to remain in public housing for a further period while they become more established. The eligibility assessment may only occur in the last six months of a fixed term tenancy.
Section 63D provides for a review process in cases where the landlord decides to issue a notice of termination on the ground that the tenant is no longer eligible. This process provides for notice to the tenant and for the tenant to make representations to the decision maker. This builds in important procedural fairness requirements. This section also provides for the Minister to make guidelines in relation to the appeals process. I undertake that in addition to the legislated requirement for an internal review of the decision, I would require in these guidelines that a second tier appeal would be available to the Housing Appeals Committee. The Housing Appeals Committee (or HAC) currently hears second tier appeals from Department of Housing decisions on a number of matters. Its recommendations are nearly always adopted by the Department. This will provide a useful and credible oversight function.
In addition to this, Schedule 1 (3) of the Bill amends section 14 (A) of the Principal Act to enable a landlord under a social housing tenancy agreement to declare, by notice given to the tenant, that the agreement is subject to a fixed term from a date specified in the notice. This is most important because, under current legislation, when a fixed-term tenancy is not renewed, the tenancy lapses to a continuous tenancy. This is in direct conflict with the intention of public housing being available to those most in need which is facilitated by issuing fixed term tenancies subject to an assessment of such need.
The second key outcome of the Bill is that it makes several amendments to the Residential Tenancies Act and to the Real Property Act to ensure that different tenants are treated consistently and the Department has appropriate operational flexibility and efficiency following the introduction of fixed term leases.
To explain: The introduction of fixed term leases for up to ten years involves a major operational change for social housing landlords. Most tenancy agreements in the social housing sector are of a continuous nature, that is, they technically operate from week to week or fortnight to fortnight, despite the fact that tenants have "lifetime tenure". This allows for tenancy agreements to be revised and updated as circumstances and needs change. The introduction of fixed term leases could have the effect of preventing such revision of tenancy agreements. This in turn could have the effect of leaving different tenants with different 18806 LEGISLATIVE COUNCIL 19 October 2005
rights and obligations under their tenancy agreements depending upon when they were entered into. Ultimately this could severely limit the operational flexibility of social housing landlords, including the Department of Housing. The social housing system administers over 138,000 properties and needs operational flexibility to ensure valuable administrative resources are directed to the most important tasks.
Let me describe the areas where consistency and operational flexibility are required, and how this Bill responds to those requirements.
As many honourable members would be aware, a number of our public housing estates require sustained attention or upgrading. In some cases, substantial re-building is required to allow these upgrades to occur and to do so, the dwellings need to be vacated. Without amendment, the significant improvement of an entire estate could be jeopardised by a handful of tenants who refuse to vacate their premises, even after reasonable alternatives have been offered, and insist on their rights under a long, fixed-term tenancy agreement. The proposed sections 63F and 63G provide a process that allows a landlord under a social housing tenancy agreement to give notice of termination of the agreement after offering the tenant a new tenancy agreement in respect of alternative premises. This would allow the Department to relocate a tenant to alternative accommodation if the premises are no longer suitable or are required for redevelopment or for some other reason. Of course, the Department would continue its current practice of seeking to relocate by negotiation, but this power is essential to ensure that important renewals are not delayed unnecessarily, something of benefit to all tenants of public housing.
These sections also address the issue of under-occupancy—a problem that can prevent allocation of suitably sized homes to struggling families. At times, the Department needs to be able to re-house tenants who, because of changing circumstances, such as children leaving home, no longer require the larger family home they are leasing. This amendment allows the Department to insist the smaller household move to a smaller home—even though it may have a long term tenancy agreement for that property—to ensure that a family who does require the larger property is able to access it. This will also be a measure of last resort, used in cases where the tenant has refused reasonable offers of alternative accommodation from the Department to address the imbalance. It should also be noted that any terminations under this ground would also be subject to procedural fairness requirements and Ministerial guidelines. Again, under these guidelines a second tier appeal would be to the Housing Appeals Committee, further ensuring a useful and credible oversight function.
This section will also provide a clear legislative basis for relocations as a measure for managing serious neighbour disputes, such as were experienced on the Gordon Estate in west Dubbo.
Another potential impact of longer, fixed-term leases would be the requirement for leases of more than 3 years duration to be executed in the approved form under the Real Property Act 1900. Schedule 2 of this Act also amends section 53 of the Real Property Act 1900 in order to exempt social housing tenancy agreements from this potentially costly requirement. Schedule 2 also exempts the Department of Housing from the requirement of the Real Property Act 1900 to register residential tenancy agreements that have a term of longer than three years. This helps avoid costs for the Department in relation to an exercise that is required to protect the rights of private sector tenants, but would be costly for NSW social housing landlords.
Another area of potential impact is that under the Residential Tenancies Act, rent cannot be increased during a fixed term tenancy unless there is a clause specifically stating the amount of rent increase or a specific formula setting out the terms of rent increases and the date they will apply. It is not possible for the social housing landlord to set such a formula with a property portfolio of over 138,000 dwellings, as such increases and formula are determined according to market conditions. It is necessary to keep market rents of social housing properties up-to-date, so that market rent paying tenants pay their fair share and contribute to the financial viability of this important government service. Clause 25 of Schedule 1 amends section 132 of the Principal Act to exempt social housing landlords from the requirements of section 45 (4) so as to allow revision of rents under fixed term social tenancy agreements. This will simplify the process of uniformly addressing changes in rents across public housing.
The proposed section 9A would enable regulations to be made to introduce particular terms or conditions to apply to all social housing leases. This would allow any changes to policy to be introduced for all tenants at the same time. This means that consistency can be maintained between social housing tenants regardless of when they signed their tenancy agreements and the length of their agreements. An important example of how a uniform change would be required is if, based on new circumstances or events, a refinement of what constitutes anti-social behaviour by tenants was required. To ensure that all public housing tenants were required to adhere to the same level of behaviour, to enjoy the same rights and to meet the same obligations, we may need to amend all agreements. This is based on the clear policy need to maintain a uniform system of rights and obligations for all tenants. A further simple example of a change that may be required here is in relation to the Department's companion animals policy. New evidence or concerns may lead to new policies in relation to the keeping of dogs of certain breeds. The Department would be in an invidious position if it could not implement changes to this policy that applied to all tenants through the tenancy agreement. The proposed section 9A would allow this to occur.
All changes brought about through this power would be subject to the government's well-established processes for approving regulatory change. That is, there would be a requirement for a Regulatory Impact Statement. Furthermore, this regulatory power could not be used to insert a term that was contrary to the Residential Tenancy Act, an important caveat I draw attention to today.
The final area in which further flexibility is required is in relation to prior tenancy debts. There are likely to be cases where a person at the end of their fixed-term tenancy is in arrears but is making appropriate progress in paying these off. If this tenant is still eligible for public housing they will be granted a new fixed term lease. The debt under the old tenancy agreement would then become a mere civil debt, which would be extremely difficult to recoup. As the financial viability of an important resource such as public housing relies on fair contributions by both Government and those utilising the system, it is important for Government to be able to fairly recover costs from consumers. For this reason, section 19B would provide for financial obligations to continue from one tenancy to another provided that the tenant remains the same. This means that debts from one fixed term tenancy could be carried over to a new fixed term tenancy. This is important to ensure that tenants who are in arrears are obliged to pay back those arrears, whilst minimising the threat of jeopardising their opportunity to receive a new fixed term tenancy.
The third key outcome of this bill is to allow the Department to charge tenants for water usage. 19 October 2005 LEGISLATIVE COUNCIL 18807
This already occurs in the private market and in many community housing properties—where premises are separately metered. The need to charge existing and new public housing tenants for water usage has been recognised by a number of other social housing organisations across Australia. Tenants pay for other utilities such as electricity and gas. Charging for water usage will promote responsible water usage and complements existing strategies to install water efficient devices in public housing.
This is an additionally important reform in light of the effects of drought conditions across large parts of the State. Current tenancy agreements for public housing tenants do not include terms that incorporate charging for water usage. This bill will incorporate such a term into all existing leases. This bill also allows tenants to be charged where their premises are not separately metered. This has been put in place to ensure that such tenants are not advantaged relative to tenants with separate water meters, and to ensure that this issue does not discourage prospective tenants from accepting offers of metered properties. The determination, levying and collection of water charges will be in accordance with Ministerial guidelines.
I am proposing today that water charges will be levied on the same cycle as rents, rather than imposing a larger, quarterly bill on tenants. At the outset, all tenants will be charged a water usage contribution charge of 4.1 per cent of their net rent or a little over 1 per cent of their household income. After a few months of operation, tenants with separate meters will have their accounts reconciled with actual usage and their charge will be adjusted. If their actual usage has been less, they will receive a credit. If it has been more, they will be advised and their charges will be adjusted upwards, but there will be no outstanding charge. For properties not separately metered, their charges will remain based on a percentage of rent. Given the need to levy a charge on tenants without separate meters in order to maintain equity with metered tenants, this is a fair basis for assessing a water charge. Obviously, this approach aligns closely with the capacity of tenants to pay. A single pensioner will pay approximately $2.40 per week, a pensioner couple will pay $3.90.
This approach is also well aligned with actual usage. The vast majority of social housing households are dependant on Centrelink benefits, such benefits are based on household composition, and water usage is also driven by household composition. Over time, if the usage of water by tenants without meters declines, then the overall percentage will also be adjusted. The percentage will be set so as to collect less than total unmetered usage so as to allow for common area usage. Metered tenants with medical or other conditions requiring excessive water usage will be able to apply to be treated as an unmetered tenant and pay only a flat percentage of their rent.
It is important to remember that the regime established under these amendments for water usage charges is based firmly on equity of charging across both metered and unmetered tenants. It is a fair and stable approach to ensuring public housing tenants are brought within our existing strategies for responsible water usage. I am proud to say that the fourth key outcome of this bill is an enhancement to tenant rights in relation to the determination of market rents. Under the current legislation and particularly Regulation 22 of the 1995 Regulations a social housing tenant whilst in receipt of a rent rebate cannot dispute under section 47 that an increase in market rent under section 45 is excessive. Section 47 A of the proposed legislation enables a social housing tenant whose rent rebate has been cancelled to apply to the Consumer, Trader and Tenancy Tribunal for an order that the current market rent applicable to their premises is excessive. This is a strong consumer protection principle. It means that a tenant with the opportunity and the initiative to improve their circumstances will not be discouraged by having to pay an excessive rent that was inadvertently imposed during the period in which the tenant was subsidised. This amendment responds directly to concerns raised with me and with my predecessor by tenant representatives.
In addition, under Section 132 of the Residential Tenancies Act, the Department is not required to provide 60 days notice of a rent increase. As a further consumer protection for tenants, this bill removes this exemption applying to housing let by the New South Wales Land and Housing Corporation and the Aboriginal Housing Corporation and now requires the giving of advance notice of rent increases.
The fifth key outcome of this bill is to extend the reshaping reforms to the Aboriginal Housing Office and, potentially, to Community Housing. At the announcement of the Reshaping reforms, their extension to Aboriginal Housing was foreshadowed, subject to consultation with the AHO Board. I am pleased to inform the House that the Board has endorsed the reforms and as a result they will apply consistently to tenants of the Department and of the AHO. The reforms have been drafted to allow them to include all social housing tenancy agreements, subject to the ability to exclude certain landlords by regulation. At the outset, Community Housing providers will be excluded, but I will be consulting further with the Community Housing sector regarding the extension of these reforms to that sector.
The sixth and final outcome of this bill is that the change in focus for social housing is recognised by proposed amendments to the objects of the Housing Act and the Aboriginal Housing Act. Schedule 2 of this bill amends the Aboriginal Housing Act 1998 and the Housing Act 2001 to insert objects into those Acts aimed at ensuring the public housing system is focused on housing people who are most in need and that the available supply of housing is shared equitably among those people.
In closing, this bill introduces important changes to the structure and operation of residential tenancy management in NSW in relation to social housing tenancies. Without these amendments the Government will not be able to deliver the sound economic and program reforms required to ensure our social housing system provides a fair and just opportunity for those most in need.
I commend the bill to the House
The Hon. MELINDA PAVEY [11.44 a.m.]: I speak on behalf of the Opposition on the Residential Tenancies Amendment (Social Housing) Bill. At the outset I indicate that the Opposition will not be opposing the bill, because 70,000 people in New South Wales are seeking Department of Housing accommodation. In the 10 years that the Carr-Iemma governments have had control of the State, including public housing stock, there has been an escalation in the waiting list and in property depreciation and maintenance issues associated with Department of Housing properties. For that reason reform of public housing is long overdue.
There is a crisis in many parts of New South Wales, and I particularly highlight the North Coast and the South Coast, where property values have escalated and there are issues of affordability for many citizens of 18808 LEGISLATIVE COUNCIL 19 October 2005 those regions being able to access affordable public housing accommodation in crisis situations. The same situation applies in Sydney. It is impossible to live in Sydney unless one earns an extraordinary amount of money. One issue is that people on the margins of society in Sydney are living in accommodation that is inappropriate for families, including young families—caravan parks, cabins or even cars. There is a crisis in Sydney and in coastal areas in terms of access to public housing. The reforms in this bill are long overdue.
It does not bode well for the Government that it has taken so long to bring necessary reforms to the Parliament. I suppose it is symptomatic of the neglect of this State on so many fronts by the Carr-Iemma governments. One would think that the Labor Party might get this area right. One would think that the Labor Government is concerned about people on the margins. It has taken the Government 10 years to introduce legislation that will provide perhaps a little fairness and equity to some of the 70,000 people waiting to get into public housing in New South Wales.
Some 15,000 people between Newcastle and Tweed Heads have been waiting for up to 12 to 15 years to get public housing stock. This reform is necessary because public housing stock should be available to those who need it most, not those who have first right because they are already in public housing. The legislation provides for people who have improved their station in life, who have some stability and who have a decent income, to move on to the next stage in their life and to leave public housing stock for those who need it most.
In general terms, the object of the bill is to amend the Residential Tenancies Act 1987 in connection with social housing tenancy agreements. It will enable the terms of residential tenancy agreements that are prescribed by the regulations made under the principal Act to extend to social housing tenancies in existence before the terms are prescribed; enable a landlord under a social housing tenancy agreement, the fixed term of which has ended, to declare that the agreement is subject to a further fixed term from a date specified in a notice given to the tenant; and enable a landlord under a social housing tenancy agreement to require the tenant to pay charges for water usage. Water use charges are an important issue. We have sought acknowledgement from the Government that aged pensioners and those on disability pensions will not be unfairly confronted with water charges.
The Opposition believes that everyone should pay a decent price for water so that people understand and respect that water is a valuable commodity in this country. A user pays system for the use and metering of water is a good way to get the message through to everyone in New South Wales that there is a cost to water and that that cost should be borne fairly by all parts of the community.
I remind honourable members that the State Labor Government has an appalling record on water and recycling in Sydney. The equivalent of 1,000 Olympic-size swimming pools is being pumped into the ocean off Sydney every day following the most basic treatment, which just removes the solids. There is no concern about recycling those 1,000 swimming pools, but there needs to be. If the Government had a proper policy for the recycling of that valuable resource, as happens in most civilised countries in the world, Sydney would not be facing this crisis. I acknowledge that creating a water usage charge for public housing tenants will give them the opportunity to appreciate that valuable commodity.
The bill also makes provision for payment of debts by social housing tenants. There is an ongoing responsibility for debts accrued. It will also enable a social housing tenant whose rent rebate has been cancelled to apply to the Consumer, Trader and Tenancy Tribunal for an order declaring that the tenant's rent is excessive. It will also enable a social housing tenancy agreement to be terminated if the landlord determines that the tenant is no longer eligible to reside in such premises. It will also enable a social housing tenancy agreement to be terminated after the landlord offers the tenant a new tenancy agreement in respect of alternative social housing premises.
The bill will also remove an exemption, applying to housing let by the New South Wales Land and Housing Corporation or the Aboriginal Housing Office, from a requirement for advance notice to be given of rent increases. It will enable rent payable under a fixed-term social housing tenancy agreement to be increased during the currency of the fixed term. It will also amend the Aboriginal Housing Act and the Housing Act to insert objects into those Acts to ensure that the public housing system is focused on housing people who are most in need and that the available supply of housing is shared equitably amongst those people, and also to exempt social housing tenancy agreements from a requirement under the Real Property Act for leases of more than three years duration to be executed in the approved form under the Act.
The Opposition believes the legislation provides for the eligibility for public housing to be based on the concept of need, which will ensure that the most needy receive public housing. A lot of people are in need and 19 October 2005 LEGISLATIVE COUNCIL 18809 on the margin of our society. They need to get into public housing to improve their situation in life and to create a proper family environment. The legislation will also encourage tenants paying market rent to seek accommodation from the private sector, thus freeing up housing stocks for the most needy. It replaces the lifetime tenure of public housing by introducing leases ranging from two to 10 years. While that will be confronting for many people who regard their Department of Housing home as their home—and I empathise with people who believe it is their home and they are entitled to it for life—we need to balance that view with the greater need of the community at large. In New South Wales 70,000 people are on very long waiting lists.
The introduction of water charges for public housing tenants is an effort to reduce water usage and promote responsible water usage. Enshrining acceptable behaviour agreements is a big issue for people living in Department of Housing precincts. Having good neighbours and being good citizens is important to community self-pride and to family self-pride. If someone is doing the wrong thing continuously, the department needs to be able to act in an appropriate manner.
The shadow Minister in the other place detailed a list of concerns that were raised with him by the North and North West Community Legal Service. The shadow Minister put 30 questions from that legal service into the debate in the other place last night. He challenged the Minister for Housing in the other place to respond to those 30 questions because, unfortunately, the North and North West Community Legal Service has not had an official response from the Minister, or from the former Minister for that matter, to questions and concerns it raised with the former Minister's office in June. Not surprisingly, the former Minister was not good with his correspondence or in communicating with his constituents. As a numbers man for the Labor Party, he is not concerned about real people and real people's concerns and did not respond to the North and North West Community Legal Service. The incoming Minister has not done that either. In the other place yesterday she was given the opportunity to deal with those 30 questions but unfortunately that opportunity was not taken up completely by the Minister.
She pointed out that in relation to water charges, unmetered charges track closely to the composition of the household, because charges are tied to income and around 90 per cent of public tenants rely on Centrelink. The figures mentioned during debate, of $2.40 and $3.90, were for a single pensioner and a couple respectively. In relation to water conservation, the department initiated a retrofit program that is currently available to tenants. The current program with Sydney Water will see a planned take-up of 20,000 dwellings. Many concerns raised by interest groups have not been covered by the Government but they are now on the record. The Tenants Union and Shelter New South Wales disagree with the introduction of water charges on unmetered properties and suggest an amendment that water usage guidelines be reviewed by the Energy and Water Ombudsman of New South Wales.
Overall, as I pointed out at the beginning of my speech, the Opposition is concerned about the 70,000 people who are on the public housing waiting list. On the North Coast alone 15,000 people have been waiting for up to 15 years to get access. It is a shame it has taken 10 years of Labor government in New South Wales to institute much-needed reform. The Opposition will not be opposing that reform. We just highlight the fact that it has taken so long and so many families with real needs have been waiting for access. On that basis the Opposition will not be opposing the legislation.
Reverend the Hon. Dr GORDON MOYES [11.57 a.m.]: I recognise the time and therefore will speak very briefly and take up the speech on another occasion. On behalf of the Christian Democratic Party I speak on the Residential Tenancies Amendment (Social Housing) Bill. This bill makes amendments to the Residential Tenancies Act and some other pieces of legislation that relate to social housing. I place on the record my appreciation of 30 years of working with the Department of Housing and needy people in the community of Sydney.
There is no question that the department has been extraordinarily helpful to charities and those who are working with people who are homeless in the community or at risk of being homeless. For example, just recently I opened a public housing estate as Greenacre. This was a whole group of single bedsits that the Department of Housing had had extraordinary difficulty in making sure were occupied by good tenants over a period of time. Much of the housing in these single bedsits had been trashed by people the department had rented them to and a number of people were engaged in gross antisocial behaviour such as drug trafficking and the rest.
We put a proposal to the Department of Housing that Wesley Mission take the head lease of the properties and we would place people into them and a staff member would be responsible for the oversight and 18810 LEGISLATIVE COUNCIL 19 October 2005 behaviour of the tenants and the upkeep of the buildings. I was able to get a Work for the Dole team to re-create the gardens, as the surroundings were totally bare. That place won a garden competition within six months of the gardening team commencing work. The people who came into the Greenacre series of bedsits were a remarkable group of people. They were adults who were living along the Parramatta River under bridges, homeless. Every night one of my staff—I might say that she is a woman and the work is very risky and she works alone—goes along the Parramatta River and to all the public parks in the Parramatta area, talks to homeless people and tells them that if they want to they can move into better places.
The department has been gracious in allowing us to take head leases over the properties and we have been able to place many homeless persons into community houses. Recently I visited some former homeless women who had been living on the streets and who are now housed in these places. It is an absolute joy. I also thank other charities with which we have worked in order to get things such as washing machines, furniture, clothing and floor coverings. In a number of ways I have appreciated the work of the Department of Housing.
Pursuant to sessional orders business interrupted.
QUESTIONS WITHOUT NOTICE
______
WARNERVALE DEVELOPMENT
The Hon. MICHAEL GALLACHER: Is the Minister for Finance, Minister for Infrastructure, and Minister for the Hunter aware of continuing delays in establishing plans for the new Warnervale town centre? Is the State Government still committed to the original site for the town centre or are the delays an indication that the Government is looking at alternative sites? What impact will a change in the location of the town centre have on major infrastructure projects such as the new Warnervale railway station?
The Hon. MICHAEL COSTA: Madam President—
The Hon. Michael Gallacher: Don't flick it, because it is a very important issue.
The Hon. MICHAEL COSTA: I acknowledge that. Your comment can be incorporated in the question.
The Hon. Rick Colless: Just answer the question.
The Hon. MICHAEL COSTA: Are you a Nationals member? Do I need to take care of myself? We better move the water. The Leader of the Opposition is not filling his glass to throw it at me, is he?
The Hon. Michael Gallacher: No.
The Hon. MICHAEL COSTA: As the honourable member knows, the Government has made a number of statements in relation to Warnervale and the associated infrastructure. There has been no change in the Government's direction. If there were to be a change it would be as a consequence of the Central Coast strategy. The process is currently being undertaken. But to my knowledge there are no changes to the announcements that have been made. I am happy to take advice from the Minister for Planning in relation to the status of the project at the moment.
PIED OYSTERCATCHER CONSERVATION
The Hon. CHRISTINE ROBERTSON: Can the Minister for Lands tell the House about the conservation program to encourage the survival of the threatened shorebird, the pied oystercatcher?
The Hon. TONY KELLY: I am pleased to inform the House that this Government is actively addressing the future of the shorebird, the pied oystercatcher. The pied oystercatcher is a distinctive native shorebird that is listed as vulnerable under the Threatened Species Conservation Act. This shorebird's future is part of a comprehensive plan of management to protect threatened species in the Richmond River area. The multiagency approach involves the Department of Lands, the Northern Rivers Catchment Management Authority, Tweed-Lismore Rural Lands Protection Board, the Department of Environment and Conservation, 19 October 2005 LEGISLATIVE COUNCIL 18811
Ballina Shire Council and Richmond Valley Council. The general public and local interest groups are also being consulted, and their views will be taken into account in the management strategy.
The pied oystercatcher is found in coastal areas throughout Australia. However, this particular program is focused on the breeding ground contained within a 55-kilometre stretch south of Ballina to the new section of the Bundjalung National Park. The Richmond River area is a significant breeding area for the bird in New South Wales and is home to around 170 of the estimated 250 individual birds. Population growth, housing development, human recreational activity and introduced pests in the region have increased the pressure on the survival of this shorebird. On occasion people quite unknowingly disturb birds from their nests, which exposes their eggs and chicks to predation and weather extremes. Introduced pests such as foxes, dogs, feral cats and feral pigs naturally take advantage in these circumstances.
Foxes are a particular problem for the pied oystercatcher and fox baiting programs on Crown land and national parks have had good success in recent years. However, housing development is restricting fox baiting and the effort to protect the pied oystercatcher must now be stepped up. Public education and awareness of the issue are obviously keys to protecting the species and will be a central part of the future management strategy. Public meetings have been held to encourage the general public and interest groups to take a part in this important project. A public meeting was held at South Ballina Beach in September to discuss the major threat to the breeding success of the pied oystercatcher from introduced animals such as the fox. At that meeting people were told about the strategy to link current fox baiting efforts on public land with baiting on adjacent private land. A second public meeting was held in Ballina last week, on 13 October. Public feedback from these meetings forms an important part in the preparation of a threatened species management strategy for these coastal lands. The meetings ensure neighbours and stakeholders have input into the planning process.
The successful conservation of the threatened pied oystercatcher is dependent on the co-operation and assistance of the local community. I am heartened by the public response and the co-operation demonstrated by the wide range of public agencies involved. Submissions are currently being received on a discussion paper on the threats to the pied oystercatcher. Following this, a draft management strategy will be developed and placed on public exhibition, where comments will be invited.
RICE INDUSTRY
The Hon. DUNCAN GAY: Is the Minister for Primary Industries aware that the President of the Rice Growers Association of Australia, Laurie Arthur, expressed "great disbelief" at the Minister's decision to deregulate the domestic rice market? Is the Minister further aware that he said, "It is disappointing that the NSW Government chose to act now as the rice industry is still in negotiations with the Federal Government...we therefore believe this action is premature"? Will the Minister allow Country Labor to join the Liberal and National parties in opposing his deregulation?
The Hon. IAN MACDONALD: This question is almost bizarre and beyond belief. Fortunately, Laurie Arthur has said a fair bit about the decision that we have been forced into by the honourable member's Federal colleagues. He made very clear what he thought about the New South Wales Government. I quote what he said today on radio, "The New South Wales Government have been terrific supporters of the New South Wales rice industry. They have helped us." The rice industry is not disappointed.
The PRESIDENT: Order! I call the Deputy Leader of the Opposition to order for the first time.
The Hon. IAN MACDONALD: It is obvious that the Deputy Leader of the Opposition has not looked at the press release of the National Competition Council of yesterday. I will read the last paragraphs to him because he has such a selective memory of these complex issues, which probably is commensurate with his capacity. It says that:
The passage of such legislation— which we are forced into—
will result in the Council assessing New South Wales as compliant with its National Competition Policy undertakings— and here is the rub—
and therefore there will be no further need for suspension of competition payments. 18812 LEGISLATIVE COUNCIL 19 October 2005
In other words, if we do not pass this legislation it will mean that the Commonwealth will take $26 million out of our budget. That would pay for a lot of schools and hospitals. Not only that, in Western Australia three years ago when the competition council imposed a penalty on the Western Australian Government over a primary production issue, the Western Australian Government committed itself to deregulate that particular aspect. It was waiting for them to get the legislation through the Parliament. What did Mr Costello do? He fined Western Australia, despite the fact that they had tried to get the legislation through and were prevented from doing so by the Greens in Western Australia. Western Australia suffered a penalty because it was unable to get the legislation through. The Government is not prepared to have the taxpayers and citizens of this State face another $26 million in penalties. We are not ashamed of our position. The useless Nationals opposite cannot pull out a statement anywhere at any time to say the national competition council should not take this action.
Many people are like the Deputy Leader of the Opposition. They will not say anything about it. This is an issue in respect of which The Nationals have failed the people of the Riverina and the citizens of New South Wales. The honourable member is so stupid to have asked me a question on this because even the Australian Financial Review made it very clear that we had no choice. All the newspapers and the broadcast media have made it clear that the Deputy Leader of the Opposition has been absolutely useless to the rice industry on this issue. As for Adrian Piccoli, the local member, he does not know where he is at; he is under a table—if he is not trying to thump someone—but at least he is a nicer fellow than his colleague. We are not prepared to have $26 million stolen from New South Wales!
WASTEWATER DILUTION
Reverend the Hon. Dr GORDON MOYES: I ask the Minister for Ports and Waterways, representing the Minister for Utilities, a question without notice. Given the parlous state of Sydney's water supply in this time of drought, what is the Minister doing to stop companies from using Sydney's drinking water from taps to dilute wastewater in order to meet Environment Protection Authority [EPA] discharge requirements before disposal? Will the Minister indicate whether the EPA has knowingly allowed this wasteful practice to occur? Where has it occurred in New South Wales? Is the Minister willing to name and shame the delinquent companies?
The Hon. ERIC ROOZENDAAL: I will refer the honourable member's question to the appropriate Minister for a response.
BANJO'S BAKEHOUSE EMPLOYEE ENTITLEMENTS
The Hon. GREG DONNELLY: My question without notice is directed to the Minister for Industrial Relations. Will the Minister inform the House about New South Wales employees signing Australian workplace agreements that reduce their take-home pay and entitlements?
The Hon. JOHN DELLA BOSCA: I thank the honourable member for his ongoing interest in this matter and his work in highlighting the injustice occurring to employees in the electorate of Coffs Harbour. I draw the attention of the House to yet another example of the sacrifices that employees are forced to make when presented with Australian workplace agreements [AWAs]. As the Hon. Greg Donnelly discovered, Banjo's Bakehouse employees in Coffs Harbour were forced to forfeit a number of valuable award entitlements in return for a flat hourly rate of just $13.37 for permanent adult sales staff. In return for waiving the right to annoying penalty rates and the red tape of actually having to pay employees more money for working longer hours, these Coffs Harbour employees were given a flat $534.80 for a 40-hour week.
This offer falls well short of the rightful award entitlement under the Shop Employees State Award, which provides full-time adult shop assistants with a base weekly wage of $542.80—plus an overtime payment for the two extra hours Banjo's employees will be required to work each week. The Award would also provide additional weekend and late night penalties. All in all, the deal short-changes Banjo's employees by around $50 per week. I will say that again. These employees have been short changed by $50 per week, but the Commonwealth Office of Employment Advocate has approved the deal. How? That shonky Commonwealth body knows how to subvert the existing no-disadvantage test. Instead of calculating entitlements based on the most relevant award, the Office of Employment Advocate determined that their contract be compared with the Restaurant Employees State Award, which features a lower hourly rate of pay.
Banjo's workers are not alone. There are countless examples of employees who have traded many benefits for slim or no gain. If these are the sorts of results the Federal Government's preferred method of bargaining delivers, what will happen when the no-disadvantage test disappears altogether? While the existing 19 October 2005 LEGISLATIVE COUNCIL 18813 screening procedures are ineffective, the current no-disadvantage test is still better than none at all. The sad reality is that under the Federal Government's proposed changes, the individual bargaining outcomes for workers will be far worse. Gone will be the opportunity to measure the content of AWAs with established award entitlements or basic minimums on an industry basis. Instead, AWAs will be compared with just four minimum standards and a reducing, eroding, disappearing minimum wage.
Under the Commonwealth's Orwellian titled "Fair Pay and Conditions Standard", Banjo's employees could be further dudded by the removal entirely of overtime penalty rates. The employees of Banjo's Bakehouse, like many other employees in regional New South Wales, may have signed these AWAs, but what choice did they have? Even if these shop assistants were aware that the State Award provided them with $50 a week more, how could they refuse? Just like the people who appeared in the Commonwealth Government's television advertising, they may not have fully understood what they were signing, or its implications.
One of the stars of the Commonwealth Government's advertising campaign told Channel Nine that he was paid $13 in the hand, while his boss received $7,500. The Commonwealth Government has today responded that this man, a welder, signed a waiver—just like Banjo's Bakehouse employees! The system the Commonwealth is proposing is a sign-it-or-else system. These workers were given a letter stating that, "Employment is conditional upon acceptance of the terms and conditions outlined in the AWA." The system the Commonwealth is proposing gives Australian workers no choices, their families no fairness and their future no protection.
The Hon. Duncan Gay: Can we look forward to you addressing your own portfolio in the next year or so?
The Hon. JOHN DELLA BOSCA: It is my portfolio—the workers of New South Wales.
LUNA PARK SITE INCOME
Reverend the Hon. FRED NILE: I direct my question without notice to the Special Minister of State, and Assistant Treasurer, representing the Treasurer. Has the Government agreed, through its authorities, to financial arrangements for the Luna Park site with various private companies, such as Multiplex? In view of the high value of the Luna Park site, what is the annual rental income or other payments for the New South Wales taxpayer for the financial year 2004-05 from the Luna Park site?
The Hon. JOHN DELLA BOSCA: The answer to the first part of the honourable member's question is: Yes, of course I am aware that the New South Wales Government leases elements of the site known as the Luna Park site to various private businesses. The New South Wales Government receives a minimum of $500,000 per annum rent from the park, plus a contribution to the Heritage Fund of 2 per cent of gross revenue from the park.
[Interruption]
Some people observe the courtesies of the House, but not the honourable member, I might add. In addition, a further 3 per cent of gross revenue—
The Hon. Duncan Gay: Point of order: Will the Minister table the document that he is reading from?
The Hon. JOHN DELLA BOSCA: I will be happy to table the document, but I will read the entire document. If the honourable member wants the document tabled then, he is welcome to it. The $1 that is often speculated about in the public arena relates to the original lease of the car park negotiated in 1997-98; it is in recognition that the developer has spent between $70 million and $80 million over time. As I said, a further 3 per cent of gross revenue is paid into an infrastructure and heritage account. This assists in the ongoing care of the heritage and infrastructure items, such as boardwalks and the cliff face.
OLDER CARERS OF PEOPLE WITH A DISABILITY SUPPORT
The Hon. JOHN RYAN: My question without notice is directed to the Minister for Disability Services. Why did it take 16 months for the New South Wales Government to accept the Federal Government's offer for additional respite funding for ageing carers? Has the Government consulted community organisations or service providers as to who will deliver these services? When will the funding be available? 18814 LEGISLATIVE COUNCIL 19 October 2005
The Hon. JOHN DELLA BOSCA: I am sure I have answered this question before. The Hon. John Ryan's research is obviously limited. If he simply had a casual chat to me in the corridor from time to time, like Reverend the Hon. Fred Nile does, I might be able to read his mind and work out what question he was going to ask me. The answer to the third part of the honourable member's question is—immediately. The answer to the second part of this question is yes, we have been consulting with appropriate groups. As the honourable member is aware, the New South Wales Government has agreed recently to an additional $48 million over three years in joint funding with the Commonwealth for respite for older carers.
One of the issues that we had some protracted negotiations with the Commonwealth about—which I think is of great benefit to the general public and particularly to older people caring for people with a disability—is the degree of flexibility that these funds will provide. The funding will deliver, under our arrangements, at least 1,000 respite places ranging from limited respite to intensive support. Respite will be delivered in ways to meet individual and family needs and will include centre-based and in-home support. The funding is the result of a bilateral agreement between the New South Wales Government and the Commonwealth. The agreement is currently sufficiently flexible to allow the State, once funds are exhausted for older carers, to provide general respite care for a range of people in serious need.
The Hon. JOHN RYAN: I ask a supplementary question. If the funds are available immediately, does that mean that the Minister has issued and released expressions of interest permitting non-government agencies to respond? Do the lists of groups that the Minister has been consulting with include the very respected group Carers NSW?
The Hon. JOHN DELLA BOSCA: Coincidentally—and perhaps I am reading the Hon. John Ryan's mind—recently I had a meeting with representatives of Carers NSW. Subject to final agreement with the Commonwealth, we will be rolling out the funds that the honourable member is concerned about.
The Hon. John Ryan: So it is not immediately?
The Hon. JOHN DELLA BOSCA: "Immediately" means this budget year.
SYDNEY HARBOUR MARITIME HERITAGE VALUE
The Hon. KAYEE GRIFFIN: My question is addressed to the Minister for Ports and Waterways. Will the Minister advise the House how the Government plans to restore the maritime heritage value of Sydney Harbour?
The Hon. ERIC ROOZENDAAL: Before container ships arrived in the 1970s Darling Harbour and Millers Point had significant heritage value. Millers Point, which is now a squared-off concrete corner, was a natural headland.
[Interruption]
Members opposite would learn something if they listened quietly for once. Darling Harbour was lined with bustling finger wharves—heritage buildings like we still have at Walsh Bay and Woolloomooloo. I am advised that the earliest recorded history of wharf facilities was in 1872.
The PRESIDENT: Order! I call the Hon. Charlie Lynn to order for the first time.
The Hon. ERIC ROOZENDAAL: By 1925 there were 12 finger wharves or piers. But then containers and big container ships arrived in the 1960s and 1970s. The whole area was brutally landfilled, covered with a massive concrete cap, and fenced off from public access. The natural headland was squared off for container ships to pull alongside. The heritage finger wharves and buildings were destroyed. Thousands of tonnes of sand and landfill were dredged to create nearly 30 hectares of flat industrial land. The foreshore was brutally changed, from elegant finger wharves to over 1.5 kilometres of straight, boring, and ugly quay line.
This was not done 100 years ago; it was only completed in 1978 and commissioned by the Maritime Services Board in 1981. It was all done to handle heavy containers, with huge cranes, and large container ships. A similar story can be told about Glebe Island and White Bay. Thirty years after this heritage vandalism we have a chance to reclaim the heritage value of these sites for the public. We have a chance to balance industrial use with public access. Yet, incredibly, some people who purport to speak for heritage want to keep this land locked up for container ships. 19 October 2005 LEGISLATIVE COUNCIL 18815
The Cahill Expressway was built in 1958—20 years before the container port at Darling Harbour. No- one would argue to keep the Cahill Expressway if there were the chance to open up Circular Quay for the public. The Cahill Expressway is an eyesore. Building a massive multi-storey concrete car park at Glebe Island would also be an eyesore. But the National Trust has been quoted in the media as supporting the car trade staying at Glebe Island—despite it needing a massive concrete car park. To argue for more containers and locking up Darling Harbour or Glebe Island when we have the chance to reclaim it for the public is not a heritage argument; it simply does not make sense. We can do so much better than that. Members of the public have the right to access and utilise these areas. Sydney Harbour is a working port; it is also the heart of our city.
[Interruption]
If members opposite listened, they would learn something. But they simply do not listen. I can see where Andrew Fraser gets it from; I can see where the behaviour comes from.
The PRESIDENT: Order! I call the Hon. Charlie Lynn to order for the second time.
The Hon. ERIC ROOZENDAAL: We have a once-in-a-generation chance to embrace the heritage value of our harbour and get the balance right. We need to keep the existing trades to support our economy—for example, cement, gypsum, gravel and soda ash, which are desperately required for the building industry and oil facilities at Gore Cove. We also have the chance to foster new maritime industries like boat repairs, maritime refuelling and related industries that operate on a more human scale than container shipping. The container revolution created a demand for port facilities, which Sydney Harbour could not meet. Containers need hundreds of metres of land behind a ship. The container revolution—as it was called in the 1970s—brought huge machines, economies of scale, and security fencing to keep members of the public out. That is why governments on both sides of politics built Port Botany, and that is why we continue to support the expansion of Port Botany.
YETTA DHINNAKKAL CORRECTIONAL CENTRE DISTURBANCE
Ms LEE RHIANNON: I direct my question to the Minister for Justice. Is it true that last week a number of prisoners at the Yetta Dhinnakkal Correctional Centre, outside Brewarrina, consumed methylated spirits, which resulted in some of the young men being hospitalised for three days? Is it true that one of these young men is the nephew of Eddie Murray, who died in a Wee Waa police cell in 1981? As the centre is promoted as a drug- and alcohol-free correctional centre, how did these young men have access to methylated spirits? What is the Minister doing to investigate this matter and to ensure that correctional services staff who work at the centre adhere to their duty of care?
The Hon. TONY KELLY: At approximately 8.50 p.m. on 11 October 2005 a disturbance occurred at the Brewarrina Yetta Dhinnakkal Correctional Centre. I am advised that officers responded immediately, separating and escorting the inmates from the area. Inmates were given prior warning before force was used. Once the inmates were secured in their cells, the immediate action team attended the centre and conducted a comprehensive search of the compound. I am advised that all inmates were assessed and treated by Justice Health staff. Only one inmate was transported to Brewarrina Hospital, where he remained for a period of eight hours. He was discharged and returned to the centre, where he remains. The inmate is the grandson of Arthur Murray, who is the father of Eddie Murray. The Governor has since spoken to Mr Arthur Murray, who is happy with his grandson's continued placement in the centre. Mr Arthur Murray has been invited to visit the centre.
Brewarrina police attended the centre to interview the inmates. Arrangements have been made with the northern security unit to attend the centre and assist with the relocation of the inmates involved and undertake a further search of the centre. I am advised that none of the departmental staff involved sustained injuries. Staff have been given a full debriefing and offered trauma counselling. The incident is currently the subject of a full departmental and police investigation. Therefore it would be inappropriate for me to comment further on the specifics of the matter.
CROSS-CITY TUNNEL
The Hon. GREG PEARCE: My question is directed to the Minister for Finance, Minister for Infrastructure, and Minister for the Hunter. Is the Minister aware that the Minister for Roads, Mr Tripodi, in response to the cross-city tunnel crisis, blamed former Minister Scully for making too many compromises in negotiation of the tunnel contract? Is the Minister aware of the compromises agreed to by Mr Scully, including 18816 LEGISLATIVE COUNCIL 19 October 2005 increased escalation of the toll costs and so-called traffic network management, that is, an attempt to funnel cars into the tunnel by surreptitious road closures and changes in order to obtain the maximum upfront payment to the Government? Will the Minister give an assurance that as Minister for Infrastructure he will not permit any further compromises of community interests in negotiating major infrastructure projects?
The Hon. MICHAEL COSTA: I am happy to answer the second part of the question. The first part of the question is based on a false premise because I never heard the Minister for Roads blame the Minister for Police for anything of the sort.
The Hon. Melinda Pavey: He said there were too many compromises.
The Hon. MICHAEL COSTA: That is right—in general. There was no specific reference to anybody. Let us firstly not distort the position. In relation to the second part of the question, I am happy to give an assurance that the Government will enter into infrastructure projects that benefit the community of New South Wales.
JOHN HUNTER HOSPITAL AND BALI TERRORIST ATTACK VICTIMS
The Hon. JAN BURNSWOODS: My question without notice is directed to the Minister for Health. Could the Minister inform the House of the role played by the John Hunter Hospital in caring for victims of the recent Bali bombings?
The Hon. JOHN HATZISTERGOS: All honourable members would be aware, and no doubt have seen vision on television, of the horrible tragedy that occurred through tourist areas in Bali. Four Australians were killed in the blasts and another 17 injured, some of them severely. The people of Newcastle have been personally affected by these bombings, with three of those killed being from the Newcastle area. The Newcastle community has rallied around those who have lost family members and friends, as well as those who were injured, providing them with support and comfort in their time of need. Nine of those injured in the blasts were transferred to John Hunter Hospital in their home city of Newcastle on Wednesday 5 October. Today I wish to pay tribute to the dedicated staff of John Hunter Hospital, who have done a magnificent job. Not only did they bring some of their own home to receive care, but they ensured that the best of care was given to members of the Newcastle community.
I had the privilege last Friday of visiting John Hunter Hospital and meeting many of the staff who were involved in co-ordinating the return of these patients to Newcastle, the supporting of their families and in continuing to care for those who remain in the hospital. I expressed to them the thanks and appreciation of the New South Wales Government and the people of New South Wales for the exemplary manner in which they have risen to the occasion and ensured these patients and their family and friends have been looked after; cared for in a way that is not only about treating their physical wounds but also providing an environment sensitive to their emotional well-being. They have done this exceptionally well. Despite John Hunter Hospital having the busiest emergency department and trauma centre in New South Wales, the complexity of the care these patients required, coupled with the significant community and media interest surrounding their arrival home, meant that this hospital and its staff needed to face new challenges to ensure that the normal operations of what is a very busy hospital were maintained. I am proud to report that this was all handled superbly.
In the eight hours before the arrival of the patients from Royal Darwin Hospital, a team of staff worked tirelessly to ensure the hospital was ready. This included: the discharge or transfer to other facilities of a number of patients; the establishment of a family support centre in the hospital to provide appropriate care for family members and friends, with access to counselling services; the establishment of a designated patient reception area in the hospital to receive the transferred patients and to ensure minimal impact on the normal operations of the very busy emergency department; the formation of specialist clinical teams of intensivists and general and trauma surgeons to co-ordinate patient care as the nine patients arrived, in order to facilitate review by other specialists, including ophthalmology, orthopaedic and ear nose and throat consultants, as required; the development of a comprehensive communication program to manage the more than 50 media representatives who attended the hospital; and making sure the community had the information they needed to feel confident in the ability of the staff of John Hunter Hospital and the health system to manage these patients.
The job of caring for their fellow Novocastrians continues for the staff at John Hunter Hospital with three patients still remaining in the general surgical ward and another patient expected to be transferred from Singapore to the hospital later today. I am sure all members will join me in congratulating all those involved on 19 October 2005 LEGISLATIVE COUNCIL 18817 a job well done and in thanking them for their outstanding professionalism, dedication and teamwork at a time when their community is hurting with the suffering of some of their own members. I also acknowledge the role that was played by a Newcastle doctor, Dr Adam Frost, in Bali and later on his return, in caring for victims, who were also his friends.
LEAD SINKERS BAN
The Hon. JOHN TINGLE: My question without notice is addressed to the Minister responsible for Fisheries. Is the Minister aware of a proposal by the Canadian Government to ban the use of lead sinkers in fishing, to save that country's loons? Is it a fact that the annual death toll amongst Canadian loons from swallowing lead sinkers is six? If so, can the Minister assure the House that he is not likely to introduce a similar pointless sinker ban in New South Wales?
The Hon. IAN MACDONALD: I thank the honourable member for this incredibly interesting question. I should first point out what a loon is. The common loon is the national bird of Canada. However, "loon" being an interchangeable term, could also be used to describe members such as the Hon. Melinda Pavey. Loons are in the family gaviidae, which in Latin means "sea smew". I am sure a number of my learned colleagues would know that smews are small crested old world ducks. I note we have already had a birdie afternoon with my colleague talking about oyster eaters.
In Europe these birds are called divers because of their superior diving abilities, and for the benefit of the Hon. Jon Jenkins, I advise that we will not be charging them for the pleasure. Loons are foot-propelled diving birds that are represented by four species in North Eurasia and North America. Loons were once thought to be related to grebes.
The Hon. Rick Colless: Greens!
The Hon. IAN MACDONALD: Grebes. But they have been found to have no relationship with any other living order of birds, and certainly not in any political sense. The earliest fossil records of a loon go back to the Palaeocene age, more than 65 million years ago—
The Hon. Patricia Forsythe: This has got nothing to do with the question.
The Hon. IAN MACDONALD: I will get on to that. And since when has the Hon. Patricia Forsythe interrupted anyone in this place about relevance! The problem with the loon is that during its normal digestive process it eats rocks and small stones to help the breakdown of food—again this is similar to the rocks that are often found in the heads of The Nationals. Unfortunately, loons sometimes mistake lead fishing sinkers for stones, resulting in the loon ingesting a lead sinker or jig head and ultimately dying from lead poisoning.
Sinkers and jig heads can account for 10 to 50 per cent of loons found dead in the north-east of the United States of America and Canada. Research in New England suggests that lead ingestion may be the single greatest cause of mortality for retrieved loons. An interesting point to note is that in Canada more than 5 million people fish each year. Each year an estimated 500 tonnes of lead sinkers and jig heads are lost.
The Hon. Melinda Pavey: What recreational tax do they pay?
The Hon. IAN MACDONALD: I am not prepared to do anything in relation to loons. With loonies like the Deputy Leader of the Opposition and the Hon. Melinda Pavey we might be able to do something about it in future. Lead weights of less than 50 grams and smaller than two centimetres are the size most likely to be ingested by birds. One single sinker or jig head is enough to kill a loon. Alternative materials for fishing weights include tin, steel, bismuth, tungsten, rubber, ceramic and clay, but most are more expensive than lead. In 1987 Great Britain banned the use of lead sinkers weighing less than 28.35 grams. In the United States, lead sinkers are banned in New Hampshire, Maine and New York. I am advised that there are a number of Australian birds that have similar digestive habits, but I have not been presented with any evidence to date that suggests we have a similar problem. I acknowledge that the Hon. John Tingle spoke of six loons being killed in this way, leading to the proposal for the ban of lead sinkers in Canada. If there were evidence of such activity in Australia, we would consider a ban on the basis of science and reason.
RURAL FIRE SERVICE TANKERS
The Hon. PATRICIA FORSYTHE: My question without notice is directed to the Minister for Emergency Services. Is the Rural Fire Service in the process of purchasing new CAT 6 fire tankers that should have a capacity for five or six crew members? Are the new Mitsubishi tankers non-rated to carry the required 18818 LEGISLATIVE COUNCIL 19 October 2005 weight, resulting in the Rural Fire Service attempting to meet Roads and Traffic Authority regulations by reducing the number of crew to four and removing equipment from the tankers? Is there another brand of vehicle that can meet vehicle specifications, including a full complement of six crew and all their required equipment? If so, why is the Rural Fire Service not using this model of tanker?
The Hon. TONY KELLY: Obviously, I do not have with me an answer to such a detailed question, but I will undertake to get an answer as soon as possible.
CARERS WEEK
The Hon. IAN WEST: My question is directed to the Minister for Ageing, and Minister for Disability Services. How is the Government demonstrating its support and commitment to carers throughout New South Wales?
The Hon. JOHN DELLA BOSCA: I had the pleasure on Monday of launching Carers Week.
The Hon. Duncan Gay: Did you put out a press release?
The Hon. JOHN DELLA BOSCA: Yes, I did, as a matter of fact. It was a good press release and I hope you read it.
The Hon. Michael Costa: It is on the web page too.
The Hon. JOHN DELLA BOSCA: It is on the web page. Carers Week highlights the valuable role played by the three-quarters of a million New South Wales carers who look after people who are frail, have a disability or have an illness. Carers are ordinary people doing an extraordinary job. That is the theme of Carers Week 2005, which will see more than 100 events hosted across the State to celebrate carers and give them a break. The New South Wales Government values the enormous contribution of carers in our community and the vital role they have in enhancing the health and wellbeing of others.
Carers have told me that access to respite is vital to their ability to continue supporting loved ones at home. As many members would be aware, caring can be a 24 hour a day, seven day a week job, and carers need a break. Respite services provide an opportunity to reduce stress, recover from fatigue and avoid burnout. This is an important and often understated part of helping families continue caring for their loved ones at home. The vast majority of people with a disability and frail older people live in their own homes with the assistance of their families and others, such as friends and neighbours. In valuing and supporting carers the New South Wales Government has provided more than $160 million for respite services this year.
In addition, I recently announced a further $48 million over three years for respite for older carers in a joint initiative with the Commonwealth Government. This funding will provide more than 1,000 new respite packages. As we know, carers need more than respite care. They also need information, support and other practical assistance. The Government provides $5.1 million each year to support carers in the community under the New South Wales Carers Program. The carers program delivers information to, and provides counselling, newsletters and camps for, younger carers across New South Wales; provides support for carers of people in the acute healthcare system; and allocates three-year grants for innovative initiatives and research for carers and one-off grants for locally based carers support, such as social activities, information and peer support.
The Department of Ageing, Disability and Home Care will spend over $1.5 billion this year on services for people with a disability, and on carers and the frail aged. Despite this very significant funding, we know there are more people who need our help. That is why the Iemma Government is developing a 10-year plan to guide the delivery of services to ensure that more people get more assistance.
ANTI-TERRORISM LAWS
The Hon. PETER BREEN: My question without notice is directed to the Special Minister of State, representing the Attorney General. Is the Minister aware that proposed new anti-terrorism laws seek to make it a criminal offence to communicate inciting messages against Australia's forces overseas and in support of Australia's enemies? Does this mean that anti-terrorism laws will prohibit the display of posters of Osama bin Laden and, if so, will the Minister take steps to remove all posters of Osama bin Laden from New South Wales juvenile detention centres, classrooms and the bedrooms of students? 19 October 2005 LEGISLATIVE COUNCIL 18819
The Hon. JOHN DELLA BOSCA: I appreciate that the honourable member is speaking in some way speculatively as the legislation he is talking about has not been finalised. However, I am sure that the Attorney General will be anxious to provide him with an answer to the question. I take it he asked the question in a serious vein so I will get a very serious answer to it.
BROKEN HILL CLINICAL SERVICES
The Hon. RICK COLLESS: My question without notice is directed to the Minister for Health. When will the Minister advertise for clinical staff in Broken Hill to make up for the 28 jobs lost to that town, given his commitment that any health administration jobs lost during his forced health service amalgamations would go to clinical services?
The Hon. JOHN HATZISTERGOS: The Rt Hon. Ian Sinclair is currently doing a review of the situation at Broken Hill to ensure just that. All of the savings that are derived from Broken Hill will go to clinical services. That will be the subject of an audit, and I understand a director of the regional remote area cluster has, in fact, been appointed.
The Hon. Melinda Pavey: Tell us who he is, in case he has not been appointed. You can announce it here.
The Hon. JOHN HATZISTERGOS: I think he has been appointed. If that has not been announced, I will get back to you when he is announced.
The Hon. Melinda Pavey: What about the Mid North Coast Area Health Service Board? When are you going to announce those?
The Hon. JOHN HATZISTERGOS: I have already. I have announced all of them except Greater Southern. Melinda has not been paying attention, and that is very disappointing. I do wish her well with the vacancy in the shadow ministry that is now available. A person of her talents will serve The Nationals well.
LOCUST CONTROL
The Hon. TONY CATANZARITI: My question is directed to the Minister for Primary Industries. Can the Minister please advise the House what plans are in place to control any Australian plague locust outbreak that may occur this coming spring and summer?
The Hon. IAN MACDONALD: I can advise honourable members that the State's locust control teams stand ready to help landholders control another round of potential locust hatchings this season. As honourable members would be well aware, last year's locust campaign was the largest control effort in Australia's history. Response teams issued enough insecticide to treat 1.3 million hectares in New South Wales.
The Hon. Duncan Gay: Paid for by the farmers.
The Hon. IAN MACDONALD: This massive effort helped save crops and pastures valued at almost $1 billion. The work of the well co-ordinated emergency response team also received international attention and praise. The United Nations Food and Agriculture Organisation praised the New South Wales campaign for its early surveillance efforts, effective emergency management and use of environmentally friendly pesticides. Accolades from the United Nations and other reputable organisations are testament to the world-class skills and experience of the State's locust response team. This team included staff from the New South Wales Department of Primary Industries, of which there were many—so in response to the outrageous claim about who paid for this I can say that the department put considerable resources into it—and staff from the New South Wales Rural Lands Protection Boards, the New South Wales Farmers Association, and the Australian Plague Locust Commission and, of course, thousands and thousands of farmers across New South Wales. One of the key objectives of last year's campaign was to minimise the number of locusts that were able to lay eggs in an effort to avoid a similar sized outbreak this year. Mapping of known and suspected egg beds indicates that this has been largely accomplished, but we are expecting some activity. Anyone who has lived on the land—and that is not the Leader of the Opposition—knows that the Australian plague locust is always present at some level.
The Hon. Duncan Gay: He actually has a bigger farm than you do. 18820 LEGISLATIVE COUNCIL 19 October 2005
The Hon. IAN MACDONALD: How many cattle does he have? However, all estimations so far indicate that this year's locust numbers will be far less than what we experienced last year. In fact, at this time last year we had more than 7,000 locust reports across the State. So far this year we have received approximately 70. We believe hatchings this spring and summer will be largely centred in the Riverina, hence the interest of the Hon. Tony Catanzariti, with isolated hatchings expected in other areas of the State. The onset of warmer weather has already triggered some hatchings, and as I said earlier we have received approximately 70 reports so far this year. I urge all landholders to regularly check their properties, no matter what area of the State they live in. I also urge them to report to their local rural lands protection board any suspected egg beds or hatchings. Knowing where and when locusts are hatching will help local control teams determine the best control options. Based on the experience of last year's effort, plans are again in place to help farmers tackle locusts, wherever they might strike.
Our plan includes a pool of more than 100 experienced staff from the New South Wales Department of Primary Industries, the rural lands protection boards, the Australian Plague Locust Commission and the New South Wales Farmers Association; plenty of ground control insecticides to treat locusts once they start to band together in sufficient densities; ground misters and boomless jets to assist farmers with on-the-ground control efforts; an advertising blitz in the south of the State, where higher locust numbers are expected to remind landholders to check their properties and report activities; and a locust hotline where landholders can receive advice on spotting and controlling the Australian plague locust.
Given most of the activities expected in the Riverina region, insecticides have been dispatched to the region to help address hatchings as they occur. Teams will continue to evaluate the situation as it unfolds and adjust response plans as necessary. Again, they will work closely and co-operatively with affected landholders to minimise the threat to this year's crops and pastures. I have complete confidence in our locust control plans and in the experience and abilities of all parties involved. They have my full support and the support of the Labor Government.
CANOLA CROP CONTAMINATION
Mr IAN COHEN: My question is directed to the Minister for Primary Industries. During budget estimates questions on 21 September 2005 the Minister said that he had referred matters relating to the contamination of New South Wales canola crops with genetically engineered traits to the Crown Solicitor for advice. Will the Minister now advise the House on the details of the Crown Solicitor's advice, and will he table that advice? If not, why not?
The Hon. IAN MACDONALD: I will deal with the Crown Solicitor's advice in due course. I remind the honourable member that this topic is one of considerable interest and will be discussed in detail at next week's primary industries ministerial council.
WORKCOVER NATIONAL CERTIFICATE OF COMPETENCY
The Hon. DAVID CLARKE: My question without notice is addressed to the Minister for Industrial Relations. Will the Minister confirm that in February WorkCover lifted its moratorium to allow new applicants to apply to become national certificate of competency assessors? How many new applications has WorkCover received since February? How many of these new applications have been finalised, either approved or rejected?
The Hon. JOHN DELLA BOSCA: The answer to the first part of the honourable member's question is that I am aware of those changes. In relation to the exact number of persons who have gone through national certificates of competency, I will obtain the information as soon as practicable and make it available to the honourable member and the House.
MENTAL HEALTH COUNCIL REPORT
The Hon. PETER PRIMROSE: My question is addressed to the Minister for Health. Will the Minister inform the House about the report entitled "Not for Service", which was released today by the Mental Health Council of Australia?
The Hon. JOHN HATZISTERGOS: I thank the Hon. Peter Primrose for this important question. Mental health is one of the Government's highest priorities. Today the Federal Minister launched a 1,000-page report of the Mental Health Council of Australia, with the Brain and Mind Institute, entitled "Not for Service". 19 October 2005 LEGISLATIVE COUNCIL 18821
While I am still considering the report, I want to make some comments about it. The Mental Health Council report does not recognise significant boosts in funding for New South Wales health services since 2001. It used figures from 2001-02, which do not take into account the massive injection of funds in recent years. In April 2004 the New South Wales Government committed an additional $241 million to mental health funding over four years to June 2008. The 2005-06 mental health budget in New South Wales now stands at a record $854 million—a $71 million or 9.1 per cent increase over previous financial years.
The Hon. Robyn Parker: It's still less than most States though.
The Hon. JOHN HATZISTERGOS: The last figures are for 2002; no figures have come out since then, and the Mental Health Council relied on those figures when making its comparisons. In any event, the New South Wales mental health budget has now increased by 140 per cent since 1994-95, from $355 million to $854 million. We are also undertaking a $76 million mental health capital works program over the next three years. I am giving the 1,000-page report careful consideration, and I will look at the recommendations that have been made. Mental health is too important to be used as a political football. I am happy to discuss these recommendations with Tony Abbott and the other State health Ministers at the ministerial council. However, I cannot accept the report's recommendation to create a new Federal agency for mental health. Any new resources should go into delivering patient care, not paying for more bureaucrats who will remotely control the process from Canberra.
If the Federal Government wanted to do more for people with mental illness, it could increase the range and availability of undergraduate training opportunities in mental health, particularly mental health nursing; facilitate the immigration of appropriately trained psychiatrists from countries such as the United Kingdom to fill the current vacancies; provide greater incentives for general practitioners to be involved in the treatment of serious mental illness in the community; provide vocational training that caters for and is targeted at people with mental illness; provide increased funding through the Home and Community Care Program for disability caused specifically by mental illness; provide respite care to relieve the burden experienced by carers who selflessly care for people with mental illness; and make funding available for psychiatrists in rural and remote areas where there are currently no psychiatrists and no specialist services available.
An estimated 100,000 people come into contact with mental health services in New South Wales each year. We have increased the number of mental health clinical staff from 4,839 in 2000-01 to 5,787 in 2004-05— an increase of nearly 20 per cent. These staff provided 24,642 episodes of acute overnight in-patient care, 261,327 days of non-acute in-patient care and about two million community contacts. The report quotes some distressing experiences from people with mental illness. I acknowledge that people have suffered distress, but this does not represent all those who are living with mental illness. Nevertheless, the issues should not be discarded.
The Mental Health Council's research methodology was somewhat limited. In fact, New South Wales is developing a program for all consumers to anonymously provide feedback about mental health services to an independent body. The Mental Health Consumer Perceptions and Experiences of Services project is based on a survey tool developed by New South Wales mental health consumers. The report's criticisms of the level of community-based mental health care in New South Wales are not valid. In New South Wales we spend 45 per cent of our mental health budget each year on non in-patient services. That is more than $380 million a year.
COFFS HARBOUR FORESHORE PLAN
Ms SYLVIA HALE: I direct my question to the Minister for Lands. Given that the department has recently become involved in the Coffs Harbour foreshore plan by signing a memorandum of understanding with Coffs Harbour council and agreeing to jointly fund the preparation of the plan, what are the Government's objectives? Will the Minister guarantee that there will be no residential and tourist accommodation along the foreshore, and that existing rainforest and dune vegetation will be protected? What meetings has the Minister had with other government departments about the revenue raising potential of this land if the Government were to make it accessible to developers? Has the Minister or anyone from his department met with any potential developers of this site?
The Hon. TONY KELLY: No, as far as I am aware I have not met with any potential developers of the site. There are a few errors in the honourable member's question. For example, the Department of Lands did not sign the memorandum of understanding. I signed the memorandum of understanding with the council. The idea of the memorandum of understanding is to work with the community to come up with a management plan, 18822 LEGISLATIVE COUNCIL 19 October 2005 and to work with council to find the best way to develop the whole foreshore, including marinas, and, for example, to preserve a lot of areas of Aboriginal heritage of which I am aware. I think the honourable member is jumping the gun a bit.
DUBBO MENTAL HEALTH UNIT
The Hon. JENNIFER GARDINER: My question without notice is addressed to the Minister for Health. Given that mental health services are falling far short of what is needed, will the Minister, as a matter of urgency, open the remaining 14 beds at Dubbo's mental health unit, as only four beds are operational?
The Hon. JOHN HATZISTERGOS: My understanding is that additional beds at Dubbo have come on line, and further beds will come on line before the end of the year. We have brought in staff from other units to fill the need there because there are insufficient trained staff from that region to staff the facility. A number of people from the Dubbo area are interested in training for that particular unit. The issue of the timing of the unit and the actual commissioning of the various sections of the unit was disclosed last year. We indicated that we needed time to have appropriately trained staff before the unit is fully functioning, and that will be next year. Those people who cannot be catered for at Dubbo will be able to go to Bloomfield.
MULTIPLE ANTIBIOTIC RESISTANT ORGANISMS
The Hon. HENRY TSANG: My question is addressed to the Minister Health. Will the Minister inform the House what the New South Wales Government is doing to prevent and manage multiresistant organisms in New South Wales hospitals?
The Hon. JOHN HATZISTERGOS: A forum was conducted in Sydney on 6 October this year. The summit brought together 90 of the State's leading experts on multiple antibiotic resistant organisms [MROs] and a host of community representatives. Detecting and containing MROs is an issue for modern health systems across the world as these bacteria are fast becoming a fact of life for hospitals. This means we need to have the most robust defences in place to protect patients from them and to minimise their spread throughout hospital wards.
To this end, the New South Wales Government established a panel of leading microbiologists and infection control experts to advise it on how to improve prevention and management of MROs in hospitals. The panel brought together experts from hospitals, leading academics, infection control experts, nurses, administrators and consumers. One key recommendation—a statewide hand hygiene program—was launched at the summit by Professor Clifford Hughes from the New South Wales Clinical Excellence Commission.
This program will commence in early 2006 and will include a campaign in health workplaces to explain the importance of hand hygiene and how to put it into practice. Most importantly, it will ensure that hand hygiene products are available at every bedside. This is just one initiative to address infection control in hospitals. The summit also endorsed the experts' recommendations regarding environmental cleaning and information technology to enable better control of antibiotic use and surveillance of methicillin resistant staphylococcus aureus bloodstream infections as key elements of an effective response to MROs in New South Wales hospitals.
The group is also overseeing the development of a detailed policy on MRO prevention and control which will provide guidance on patient and health care worker screening, additional infection control precautions, outbreak management and building design, construction and refurbishment. The proceedings and recommendations of the summit will be collated to inform the expert group's final report to government. NSW Health already has in place a comprehensive evidence-based infection control policy to support our area health services in ensuring appropriate infection control in New South Wales health care facilities.
Extra guidance specific to MROs will enhance this policy. New South Wales is the only Australian jurisdiction with a mandatory system in place for standardised monitoring of health care associated infections. This system covers every New South Wales public health care facility that admits patients, including referral hospitals, community hospitals and state-managed nursing homes. The surveillance program focuses on identifying infection control problem areas to assist hospitals to implement and evaluate improvements in quality of care.
Two years worth of data for 2003 and 2004 has recently been released, including the rate of multiple antibiotic resistant organisms infection in New South Wales hospitals. This data shows that the rates of infection 19 October 2005 LEGISLATIVE COUNCIL 18823 are broadly comparable with other Australian States and lower than comparable with countries internationally. I look forward to receiving the recommendations from the summit so that New South Wales MRO prevention, minimisation and control strategy is state of the art.
The Hon. JOHN DELLA BOSCA: I suggest that if honourable members have further questions, they place them on notice.
BROKEN HILL CLINICAL SERVICES
The Hon. JOHN HATZISTERGOS: Following the question that was asked by the Hon. Rick Colless, I advise the House that the remote cluster manager of the Greater Western Area Health Service has been appointed and announced. His name is Mr Justin Ragenovich. In relation to the interjection by the Hon. Melinda Pavey, I have announced all the appointments for the rural area health services except for Greater Southern Area Health Service. The appointments for the Mid North Coast Area Health Service have been announced, and the metropolitan and Greater Southern area health services will be announced shortly.
DEFERRED ANSWERS
The following answers to questions without notice were received by the Clerk during the adjournment of the House:
QUEANBEYAN DISTRICT HOSPITAL UPGRADE
On 14 September 2005 the Hon. Patricia Forsythe asked the Minister for Health a question without notice regarding the Queanbeyan District Hospital upgrade. The Minister for Health provided the following response:
In relation to the first question I am advised yes. In relation to the second and third questions the answer is yes.
WATER METERING
On 14 September 2005 Mr Ian Cohen asked the Minister for Ports and Waterways, representing the Minister for Utilities, a question without notice regarding water metering. The Minister for Utilities provided the following response:
Sydney Water supplies water to almost 1.7 million properties each day. Around 1.1 percent of these do not have water use recorded by a water meter.
The majority are dwellings such as terraces primarily in older inner city suburbs. The remainder tend to be small commercial properties such as shops, with limited demands for water, in older established areas. These properties remain after a comprehensive program by Sydney Water in the mid 1990's to fit meters where practical and economically feasible.
Sydney Water requires water meters to be fitted to all new developments. It is expected that the remaining properties will have meters fitted as and when redevelopment occurs.
Prices for water supply are set by the Independent Pricing and Regulatory Tribunal (IPART). As part of its determination, IPART has set prices to ensure that unmetered users contribute equitably towards the cost of services in line with other users.
Sydney Water applies a fixed charge to unmetered residential properties that is equivalent to the charge for a residential property with an annual usage of 240 kilolitres of water (a typical household), while the fixed charge applied to unmetered non-residential properties is based on half that usage at 120 kilolitres per year.
A key feature of IPART's determination released in September 2005 reinforced the continuing trend towards user pays, with the introduction of a lower fixed charge for water services and higher usage charges. This trend is observed with Sydney Water currently obtaining around 44 percent of its revenue from usage-based charges, compared to only 14 per cent in 1990.
PUBLIC HOUSING WATER METERING
On 15 September 2005 Reverend the Hon. Dr Gordon Moyes asked the Minister for Natural Resources, representing the Minister for Housing, a question without notice regarding public housing water metering. The Minister for Housing provided the following response:
The Reshaping Public Housing reforms that were announced in April 2005 included a decision to charge public housing tenants for water usage. This includes tenants with metered properties and also tenants without their own water meter.
In the clear interests of equity, both metered and unmetered tenants will be charged for water usage. Tenants pay for other utilities such as electricity and gas and charging for water usage will promote responsible water usage and complements existing strategies to install water efficient devices in public housing. 18824 LEGISLATIVE COUNCIL 19 October 2005
For properties not separately metered, their charges will be based on a percentage of rent. Given the need to levy a charge on tenants without separate meters in order to maintain equity with metered tenants, this is a fair basis for assessing a water charge. Obviously, this approach aligns closely with the capacity of tenants to pay. This approach is also well aligned with actual usage. The vast majority of social housing households are dependant on Centrelink benefits, such benefits are based on household composition, and water usage is also driven by household composition. Over time, if the usage of water by tenants without meters declines, then the overall percentage will also be adjusted. The percentage will be set so as to collect less than total unmetered usage so as to allow for common area usage.
The water usage charge will be set at 4.1% of net rent or a little over 1% of their household income. For example a single pensioner on an assessable income of $229.00 per week will pay $2.35 per week for water. A couple on the age pension with an assessable income of $382.00 per week would pay $3.92 per week.
The Department does not plan to install separate water meters, as this would be prohibitively expensive. The Department plans separate meters in all new developments.
In addition, to encourage water saving by tenants, the Department has initiated a Retrofit Program that is currently available to tenants living in Sydney, Blue Mountains and the Illawarra regions to install water saving devices. The current program with Sydney Water will see a planned take up of twenty thousand (20,000) dwellings.
PORT BOTANY REPORT
On 15 September 2005 Ms Lee Rhiannon asked the Minister for Ports and Waterways, representing the Minister for Planning, a question without notice regarding the Port Botany report. The Minister for Planning provided the following response:
The Report of the Commission of Inquiry into the proposed Port Botany Expansion was released by the Commissioner on 14 October 2005.
Questions without notice concluded.
[The President left the chair at 1.03 p.m. The House resumed at 2.30 p.m.]
GENERAL PURPOSE STANDING COMMITTEE NO. 2
Report: Budget Estimates 2004-2005
Debate resumed from 12 October 2005.
The Hon. PATRICIA FORSYTHE [2.30 p.m.]: There is something a little bizarre about the fact that we are now commenting on budget estimates for 2004-05 when we dealt with that budget a long time ago and the report is dated March 2005, and we are in already into the budget estimates process for the 2005-06 budget. To some extent our committee system is devalued by this process whereby the debate on our reports occurs many months after the reports have been tabled. I urge the House at some stage to consider the provision in the standing orders that allows us to deal with committee reports for only one hour on a sitting Wednesday. Many committee reports await proper debate in the House. It seems to me that this devalues what is otherwise basically a good system.
General Purpose Standing Committee No. 2 dealt with a number of portfolio areas, two that are significant in budget terms—the portfolio area of Health, and the portfolio areas of Community Services, Ageing, Disability Services, and Youth. Those two portfolios are now the responsibility of different Ministers. Health expenditure is a significant part of the budget. The committee also dealt with the important portfolios of Gaming and Racing, Tourism, Sport and Recreation, and Women. Ministerial portfolios were realigned this year. Each portfolio was subject to a two-hour hearing. We dealt with two portfolios at a sitting, and the sittings were held over a period of about a week. The committee has two Opposition members, two government members and two crossbench members.
So the opportunity to adequately dissect the budget for each portfolio in a meaningful way is not really achieved through the committee process, particularly when in any one week there are so many portfolios being considered. It is not just about looking at budget papers; it is also about looking at annual reports and other reports—for example, those that relate to the Auditor-General. It might also include reports that have gone through to other agencies of government. They all become relevant in the budget process. Yet at any one time the Opposition may have a maximum of about an hour of questioning, and that is not adequate.
Last year we invited back representatives from the Health portfolio and the Community Services, Ageing, Disability Services, and Youth portfolio for further questioning. At the second round of hearings we deemed it more appropriate to hear from departmental officers: we chose not to invite the Minister. The reason for the subsequent hearings was that we were not satisfied with the quality of the answers we received. Some 19 October 2005 LEGISLATIVE COUNCIL 18825
Ministers appearing before the estimates committees exhibit extraordinary arrogance. I will probably say more about that in the context of the 2005-06 estimates hearings. There were significant contrasts between Ministers who understood the importance of co-operation and willingness to provide answers and who understood the process, and those who were dismissive and not prepared to give the response we want. That is why the committee chose to have subsequent hearings in relation to two portfolios.
We were not satisfied with the answers given to questions on notice or the answers received at the hearing. We had a better response from the departmental officers at the second hearing, as one would expect. It is not for them to debate with us the quality of the questions but to provide the answers. I have to say that some Ministers are more a part of the problem than a part of the solution. Perhaps the Government is so disinterested in scrutiny at any level—through the estimates process, in the Parliament or in other ways—so disinterested in being open and accountable, that some Ministers treat the budget process with disdain. In one case we had to send back for clarification of written answers we received following the first hearing. Notwithstanding that, we examined some of the important areas in each portfolio.
For example, we looked at northern beaches hospital services. Committee members saw the need for further investigation and the committee undertook a reference in December last year and had hearings in the early part of this year in relation to the future of the Mona Vale and Manly hospitals. That came out of questions and answers during the budget estimates process. As always, we were focused upon mental health service provision. It will come as no surprise to honourable members that that issue will appear as a line item in this year's committee report to the House. There were a number of other areas in respect of which the committee was not satisfied with the quality of the answers given.
It is really not good enough for Ministers to take every question on notice: it does not say a lot about a Minister being on top of his or her brief. There have been a number of changes to the Ministry since last year. During the 2004-05 budget hearings the former Minister for Health—now the Premier of New South Wales— made a single appearance before the committee. I was not impressed. The Minister did not appear to be on top of his portfolio and took most of the questions on notice. The committee had to make more than one attempt to obtain proper answers, and this applied also to written answers.
I know that some members of the Government think it is boring that they have to appear before the committee and answer questions posed by members of the Opposition and the crossbench, but there is enormous interest in the community about what we are able to achieve through this process. Sometimes members of the New South Wales public service are very keen for us to be made aware of certain issues and that we get things on the record in a proper, open and accountable manner. That is our job as members of Parliament and as members of these committees. There was some disappointment about the way in which Ministers responded. I would have to say that the Minister for Tourism and Sport and Recreation, and Minister for Women—
The Hon. Melinda Pavey: Is a disgrace!
The Hon. PATRICIA FORSYTHE: —is a disgrace. Her response last year and this year was one of disdain that she had to appear before the committee.
The Hon. Melinda Pavey: Chewing her gum!
The Hon. PATRICIA FORSYTHE: Indeed, chewing her gum and in whatever demeaning way she chooses to convey that impression to the committee. So many people aspire to be Ministers and work diligently on a number of issues. I have to say that the Minister for Tourism and Sport and Recreation, and Minister for Women does not create a good impression. She treated with disdain members of the committee who dared to question the priorities of the Government in a number of areas. It was illuminating to go back and read the questions and answers dealing with Luna Park under the Tourism portfolio. The Hon. Dr Arthur Chesterfield- Evans last year chose to ask the Minister a number of questions about that issue, some of which related to the Planning portfolio. In light of a recent debate in this House, perhaps I will leave it to the honourable member to reread the questions he asked the Minister last year and recall the things he was interested in on that occasion.
There were other important issues, priorities for the Government, such as the promotion of New South Wales. We were interested in some issues that were brought to the attention of the committee by whistleblowers in relation to the Sport and Recreation portfolio, but the Minister seemed somewhat disdainful of that. In the case of one sport and recreation centre at Berry the Minister was, quite frankly, not interested, but the committee formed the view that there was a level of staff discontent and an issue of morale involved. I would have thought 18826 LEGISLATIVE COUNCIL 19 October 2005 that a Minister interested in her portfolio would want to be fully aware and in a position to inspire some confidence in the committee; that the Minister would have some degree of interest in the well-being of ordinary members of the public service who work day in and day out for this Government. However, that was certainly not the impression conveyed by the Minister in response to questions asked of her in regard to Sport and Recreation issues.
The committee probably had a better response from the then Minister for Community Services, Minister for Ageing, Minister for Disability Services, and Minister for Youth, who since that time has changed portfolios and indeed changed Houses. The committee was required to schedule additional hearings because it is not possible in two hours to properly and appropriately analyse all of the issues that are so relevant in the significant portfolio of Community Services, Ageing and Disability in particular. Some of the issues that were relevant last year are just as relevant this year, such as those to do with the auditing of the case files of children and young people and the filling of additional caseworker positions. The issue of the deaths of young children who had been known to the Department of Community Services is still important, and one in respect of which the Government has not yet been able to achieve what might be described as a satisfactory performance.
Regardless of the amount of money the Government has allocated at various times, the fact is that it has not yet got the management of the process right, nor, I suspect, has it got the level of resourcing right. That emerged last year and was the subject of significant questioning. That is a brief overview and encapsulation of the work of General Purpose Standing Committee No. 2 in relation to the budget estimates for 2004-05. I express my appreciation to all of my colleagues who served on the committee, those who were substantive members and those who were substitute members. In particular I thank the committee secretariat and all who supported the committee in that very difficult period that we had to get through. The pressure of work was considerable and I acknowledge all those on the committee secretariat and thank them very much.
The Hon. MELINDA PAVEY [2.43 p.m.]: I echo the comments of the chair of General Purpose Standing Committee No. 2, the Hon. Patricia Forsythe, in acknowledging the work of officers of the committee secretariat in the budget estimates process. It is ironic that one year later we are reporting on that budget estimates process in this Chamber. I was active in budget estimates relating to Health, Gaming and Racing, Tourism and Sport and Recreation, and Women. In relation to Tourism and Sport and Recreation, it was an illuminating experience to be a member of the committee. Of all the Ministers I have questioned during the budget estimates process—and last year was the second occasion on which I had done so—I was alarmed at the attitude of the Minister for Tourism and Sport and Recreation, and Minister for Women, Sandra Nori, and her apparent contempt for the budget estimates process.
There was obviously a clear lack of knowledge of the portfolio considerations. Some very pertinent questions were put to the Minister by members of the committee in relation to the major health issue of obesity. One would have thought there would be a policy consideration or plan being formulated by the Department of Sport and Recreation in conjunction with the Department of Education and Training and the Commission for Children and Young People—some active or proactive measure—to deal with one of the biggest issues facing a healthy New South Wales and a healthy Australia. But there was not; there was simply obfuscation on the part of the Minister in response to a series of questions, and contempt for the process. That was unfortunate.
I would also mention the lack of concern and lack of vision in relation to tourism, especially in regional New South Wales. Within regional New South Wales there is concern that the very expensive, but not very effective, advertising campaigns being conducted by the department are not having the desired effect within local regions. We are not encouraging enough people from the cities—whether that be Sydney, Newcastle, Wollongong, Melbourne or Brisbane—to visit regional areas of the State. The focus is too much on Sydney.
The Minister is also not seeking advice and input from those in the regions who know what people want when they go on holidays. That is not to mention the issue of the lack of direction, drive and policy initiative to capture a lot of the baby-boomer market, the baby boomers who are travelling around Australia in caravans. They appear to be travelling right through New South Wales and making a quick dash to Queensland, the Northern Territory and Western Australia. We are not capturing enough visitors, especially in regional New South Wales. Overall we have seen a lack of vision, concern and respect for the budget estimates process from a Minister who, I would agree with the Hon. Patricia Forsythe, does not deserve to hold such an important post.
Interestingly, the Minister for Gaming and Racing, when asked at the budget estimates hearing last year whether he had a vision for the New South Wales gaming industry, said, "I will just refer that to my department head." Twelve months later, on the anniversary of the budget estimates process, we asked the Minister the same 19 October 2005 LEGISLATIVE COUNCIL 18827 question again, but still he was not able to come up with a vision. That is not a laughing matter, because the industries and communities that are supported by Gaming and Racing are very important to New South Wales. To have a Minister who does not have a vision for his portfolio is a matter of great concern. I suspect it is reflective of the Government as a whole.
The Health budget estimates process with the now Premier, Morris Iemma, was also illuminating. As Minister for Health he referred a large number of questions to the earnest and hardworking departmental officers—questions that the Minister was obviously not good at answering—in relation to northern beaches hospitals, mental health services, the nursing work force, after-hours general practitioner clinics and emergency departments, the health system, the State's preparedness in the event of a terrorist attack, public-private partnerships for developing health infrastructure—for which the Minister Iemma certainly does not have a vision—and hospital waiting lists.
A supplementary hearing was held on 20 December, at which the Department of Health provided answers to a number of questions on notice. We acknowledge the work of the department in supporting the budget estimates process. Overall General Purpose Standing Committee No. 2 witnessed some poor performances from poor Ministers in the then Carr Government. It is interesting that one of the poorest performances was from the then Minister for Health, who is now the Premier of New South Wales.
Motion agreed to.
GENERAL PURPOSE STANDING COMMITTEE NO. 5
Report: Budget Estimates 2004-2005
Debate resumed from 3 May 2005.
Mr IAN COHEN [2.52 p.m.]: I wish to speak to report No. 23 of General Purpose Standing Committee No. 5, of which I am the Chair. The report covers budget estimates for the year 2004-05. I concur with the Hon. Patricia Forsythe that the budget estimates process is rather confusing and needs to be remedied. As budget events and reports roll on from one year to the next, it is rather difficult to differentiate between the figures, particularly when there is an almost expected reply or reaction from the various Ministers. Some Ministers take the budget estimates process seriously, and a deal of information is gleaned from the process, while others do not act in what would be considered to be a responsible manner.
The committee examined budget papers for the portfolio areas of Regional Development, the Illawarra and Small Business, Primary Industries, Mineral Resources, Rural Affairs, Local Government, Emergency Services, Lands, and the Environment. The committee held hearings between 14 and 17 September 2004. It held supplementary hearings on 15 February 2005 regarding the Environment and Mineral Resources portfolios, on 25 February 2005 regarding Primary Industries, and on 30 March 2005 regarding Mineral Resources. I thank the departmental staff who made themselves available for further supplementary hearings.
It seemed a drawn-out process during that time, the fact that the committee was still meeting for supplementary hearings, and yet we were gearing up for the next round of estimates hearings for the following year. It allows one to reflect on the fact that it can be difficult to organise adequate time and opportunity to question Ministers to the degree of detail that makes the budget process work. We find ourselves holding supplementary hearings well into the following year, in a process that should be short, sharp and efficient.
The Hon. Melinda Pavey: And if you've got a weak Minister, the Labor Party takes up question time.
Mr IAN COHEN: I acknowledge the interjection by the Hon. Melinda Pavey. It is true that certain Ministers treat the committee process with more respect and consideration than others do. I thank the committee members and the secretariat staff for the well-organised conduct of the hearings, the preparation of the questions, and the conduct of the inquiry. In addition to committee members who attended the hearings, other members who attended included the Hon. Eric Roozendaal, the Hon. Duncan Gay, the Hon. Henry Tsang, the Hon. Amanda Fazio, the Hon. Ian West, the Hon. Charlie Lynn, the Hon. Jan Burnswoods, the Hon. David Clarke and the Hon. Robyn Parker.
The report summarises the main issues discussed at each hearing. Hundreds of questions were asked by committee members and many questions were put on notice. Some issues discussed highlighted the importance 18828 LEGISLATIVE COUNCIL 19 October 2005 of the budget estimates process. As always, it certainly was a worthwhile process, although it could be improved somewhat. The Minister for Regional Development, Minister for the Illawarra, and Minister for Small Business appeared before the committee. Amongst the issues discussed with regard to regional development were assistance to businesses in drought-affected areas and government expenditure on regional projects. Of particular interest to me was the funding of private industries, local government, and community organisations in the northern region. The Minister said that the Department of Regional Development gave a significant amount of money to the SAE College. I asked questions about that matter the following year.
I acknowledge that the Minister has shown a preparedness to be open to suggestions from other members of Parliament and members of the community to make that funding more targeted in areas where we support, in particular, young people who are starting off in industry, rather than those who have the ability, because of their obvious wealth and expertise, to gain grants from the Department of Regional Development. The Minister stated that there was a possibility that the college would move its headquarters to Europe if it did not receive support from the Government. The support was forthcoming, but as it went towards one of the most wealthy men in Australia and to such a well-established organisation I would say that it was money that could have been better spent working with people on business incubators, particularly with young people in the northern regions who are looking for opportunities to get small businesses started.
We have since had discussions about those issues at later committee meetings, and I expect the issue will be ongoing. Questions were also asked about the expansion of port activities in Port Kembla, high-speed rail links between Sydney and Wollongong, and the Dumbarton-Maldon rail link. The Minister, to his credit, took a keen interest in discussing those issues. He comes from the area, and he answered the committee in a way that was mutually beneficial. The Minister for Primary Industries also appeared before the committee—which is always an interesting challenge. I was able to direct the Minister to interesting questioning on organic farming, timber assets, the restocking of native and non-native fish, and the amount and direction of funding that goes into those areas of activity. I also raised with the Minister an issue I raise every year, that is, the shark-netting program, on which the Minister seems to miss the point.
The committee conducted a supplementary hearing on 25 February 2005 when a number of issues were raised, which included further questioning on logging operations, marine parks, drought assistance and, lo and behold, the national livestock identification scheme—another issue that has been the subject of an ongoing debate between the major parties. At the hearing there were also questions on the grey nurse shark protection scheme, which, interestingly enough, has now developed to the current issue of taxing divers, yet the Minister still refuses to acknowledge the importance of protection zones for these critically endangered sea creatures. This matter has been ventilated at previous estimates committees and we expect it will be an ongoing issue. The issue of a grey nurse shark protection scheme needs to be addressed by the Minister as soon as possible because these magnificent creatures are at the apex of the marine environment in our local area, with aggregation sites in several specific sites along the east coast of New South Wales.
It is incredibly important for the tourist industry that we look at not only the issue of species conservation but also the establishment and effectiveness of marine parks. When we debate these issues and they are raised in estimates committees one wonders why the Minister does not recognise the economic and ecological importance of protecting that species of shark. These creatures are incredibly valuable for tourism in coastal communities throughout the entirety of summer. Those aggregation sites are known and they are well defined; it is clear what needs to be done. As the conservation movement and various interest groups have been saying for a long period of time, they need an adequate buffer zone. We are talking about 1.5 kilometres that would adequately give some respite to this species of marine animal that is on the verge of extinction.
The Mineral Resources portfolio estimates hearing was conducted on 16 September and the key issues raised were changes in the Coal Compensation Board's royalty scheme, the role and function of the Minister for Mineral Resources within the Department of Primary Industries, how they meshed in together and how that worked. Other issues were brought up, including Bounty Oil and Gas NL exploration licences and—an issue of importance to me—sand extraction on the Somersby plateau.
Supplementary hearings were conducted on 15 February when coal compensation liability, in particular, was raised together with the ongoing issue of longwall mining and the Cataract River task force recommendations. The Minister for Rural Affairs, Local Government, Emergency Services and Lands is maintaining some of those portfolios, but in other areas he has moved on from local government. The Minister appeared before the inquiry and there was significant discussion on the conversion of eastern and central New South Wales perpetual leases to freehold title and the management, sale and earnings of Crown roads, which was an issue of importance to the community. 19 October 2005 LEGISLATIVE COUNCIL 18829
In relation to local government, the dismissal of Walgett Shire Council and the financial implications of local council amalgamations and strategic alliances were investigated by the committee. The Minister for Local Government at the time was very forthcoming in taking the committee seriously and answering the questions, as he did in regard to the Emergency Services portfolio, which is always an interesting portfolio to deal with. People who are on the ground dealing with emergency services, such as Mr Phil Koperberg and people from the State Emergency Service, were very adept at giving clear and concise responses to issues such as the leasing of the King Air twin-turbo prop aircraft for fire fighting purposes; the Rural Fire Service's conference; the emergency evacuation response plan for Lucas Heights; and various other details involving fire fighting equipment and the State's preparedness, through the emergency services, to deal with emergencies that occur every year, particularly involving fires.
The Minister for the Environment, Mr Bob Debus, appeared before the committee on 17 September in relation to the response by the Environment Protection Authority [EPA]. The issues concerning groundwater contamination on the Orica site at Port Botany consumed quite a significant amount of the committee's time. The Minister's responsibilities in that regard were well ventilated, particularly on the issues of funding and staff efforts. Also discussed were the EPA investigation of breach of licence conditions by Waste Services New South Wales at its Lucas Heights treatment plant and the penalty imposed, and landfill gas levels at the Eastern Creek site.
The issue of hexachlorobenzene [HCB] material stored at the Orica site in Botany and the EPA regulatory response to that were also raised at the hearing. This is an issue that has been ongoing for many, many years. The site is now receiving remedial treatment but, nevertheless, there is a toxic legacy at that site that makes Australia one of the highest polluters of hexachlorobenzene, and this is the only site where the material is stored anywhere in Australia. Another issue that was raised was the suspension of waste treatment at the Lidcombe liquid waste treatment plant during the Olympic Games. The question was asked: If it was suspended, why it is still operating at other times? The local community has raised a large number of issues in that regard.
Other issues raised were the use of pesticides in the management of salvinia in the Hawkesbury-Nepean River and environmental management in the Kosciuszko area. I commend the report to the House. [Time expired.]
Motion agreed to.
GENERAL PURPOSE STANDING COMMITTEE NO. 4
Report: Budget Estimates 2004-2005
Debate resumed from 24 May 2005.
The Hon. JENNIFER GARDINER [3.07 p.m.]: Last year, like other members, I mentioned the time lag in the reporting of our General Purpose Standing Committee reports from the previous year, which are only coming up for debate now in October. Nevertheless, harking back to the previous budget estimates in 2003, firstly I place on record my appreciation to all the members who served on General Purpose Standing Committee No. 4 budget estimates hearings and also the members who visited the hearings from time to time, depending on their particular area of expertise, to take part in questioning Ministers and departmental officers on particular parts of the list of portfolios for which this committee has responsibility.
The committee held four days of public hearings in the first instance in September 2004, and then conducted five days of supplementary hearings. The committee portfolios cover Science and Medical Research, Infrastructure, Planning and Natural Resources, the Hunter, Housing, Roads, Transport Services, Energy, Utilities and Sustainability.
The Transport portfolio took significant time, as it is a large area for investigation and analysis. The committee focused on rail services in rural and regional areas as well as counter-terrorism measures, for very good reason. The committee reviewed CountryLink services and will continue to review those services with the Government's final response to the Parry report having been bolted down only in the last week or so. The committee also dealt with a lack of services on the grain lines in this State, allegations of corruption by RailCorp, redeployment of displaced employees, transit officer numbers and powers, and their ongoing role. The committee also investigated bus ticketing, Lower Hunter transport services—which is causing considerable 18830 LEGISLATIVE COUNCIL 19 October 2005 debate in the local community and remains unresolved—closed-circuit television with remote monitoring on railway stations, and the use of consultants by the department.
The committee held supplementary hearings on the Transport portfolio with respect to ongoing timetable changes, speed limits, and on-time rates for CountryLink services. During the hearing the committee ascertained, for the first time, that the speed limits on CountryLink services had been reduced. The committee also considered the reliability improvement program, the Waterfall rail accident, Mr McInerney's report and recommendations, the easy access program at railway stations, and complaints against transit officers. It also dealt with issues in the Hunter.
With respect to the then mega department, the Department of Infrastructure, Planning and Natural Resources [DIPNR], the committee considered the sensational closure of the Orange Grove designer outlet centre, with issues overlapping with the inquiry conducted by General Purpose Standing Committee No. 4 into that closure. It dealt with the recruitment of former ministerial staff at DIPNR, the appointment of consultants, in particular the company BSR Consulting, the planning reform task force reports and their availability, and planning reform consultation mechanisms, which continues to attract considerable discussion in the community.
At the hearing the director general revealed that the metropolitan strategy, which involved a great deal of work, would not be released as a one-off strategy called the metropolitan strategy but, rather, would be the release of an ongoing series of metropolitan strategies. The committee needs to undertake further work on that matter because the strategy is still not apparent. Considerations with respect to the restructure of DIPNR will have to be updated in the next round of hearings because the department has been restructured yet again. The Planfirst Program also attracted questions.
With respect to the Natural Resources portfolio, the committee dealt with the National Water Initiative, which was an initiative of the Federal Leader of The Nationals, the Hon. John Anderson. Indeed, the Minister acknowledged the role John Anderson played in getting the initiative up and running. An ongoing issue affecting many electorates in the hinterland was the Government's decision to stop forestry operations in the Brigalow area. I was in Gunnedah a few days ago and the community certainly wishes this matter to be pursued further. Water entitlement licences and environmental flow allocations were the subject of discussion by the committee, as in the previous year. Also of interest were land release and infrastructure costs in the Bringelly land release area.
The committee held a supplementary hearing with respect to DIPNR to consider issues surrounding particular officers of the department, and plans for the revitalisation of Parramatta Road and the extension of the M5 East Tunnel. It also followed up on questions about the metropolitan strategy and the latest version of planning reforms. A further supplementary hearing related to the restructure and staffing of the department, the use of taxis by departmental officers, and one in particular, the property vegetation developer tool—another issue not satisfactorily resolved by the department—environmental flows and extraction of water from the Shoalhaven River. A significant topic for the committee was land management branch staff and the branch's activities in relation to native vegetation management and regional strategic plans for the New South Wales coast. The committee is still awaiting those final plans.
The proposed F6 and the metropolitan strategy, the Barwon-Darling catchment management plan and water sharing plans were also a focus of the committee. An additional hearing resulted in further discussion on the metropolitan strategy, and the director general's responsibilities and use of resources. I assume we will meet the new director general at the next hearing as Jennifer Westacott has now resigned. Many questions were asked about air quality in the M5 East external stack in various inquiries, including this estimates hearing. Questions were asked about the role and status of the infrastructure council, the introduction of local environmental plans, and the department's population projections and planning for population growth, biodiversity planning, property vegetation plans, and consultation with stakeholders, communities and staff. Further questions related to ground water sharing plans, which also took into account community concerns about a lack of genuine consultation on issues affecting people's livelihoods. Questions were also directed at rail infrastructure and, interestingly in contemporary politics, traffic predictions for the cross-city tunnel, a topic the committee will continue to look at in the future, along with the Lane Cove Tunnel and M4 East.
With respect to the Roads portfolio the committee asked questions about the impact on roads of increased traffic for grain distribution with the closure of grain lines, tunnel filtration—a recurring theme—and safety provisions that attach to heavy transport, which is also being dealt with by another inquiry into the Pacific Highway. The committee looked at timetabling for the Pacific Highway, the Ballina bypass, and upgrade projects that have not yet been completed in relation to the Princes Highway and the Albury bypass. 19 October 2005 LEGISLATIVE COUNCIL 18831
At a further hearing there was some discussion about gas emissions from the M5 East and cross-city tunnel, unlicensed drivers and unregistered vehicles, priority projects for improving safety along the Pacific Highway, and road safety in general. There were questions about Department of Housing stock and the sale of such stock, maintenance issues and how the Government is addressing the backlog of maintenance in public housing, the extent of tenant damage to housing stock, and the plans for redeveloping the Minto public housing estate. Further public housing issues were raised later in the committee's deliberations.
There was extensive discussion about asbestos contamination in particular properties, caravan park closures, the Commonwealth's funding for public housing and rent assistance, the Minto project again, and the role of local government in affordable housing. In relation to energy utilities, sustainability and science and medical research, the committee looked at the Metropolitan Water Strategy, the environmental responsibilities of water supply providers, options for future water supply—obviously these issues continue to occupy a great deal of time in the public arena—the Georges River waste water strategy, and maintenance of the southern and western suburbs ocean outfall sewerage scheme.
There were questions about insurance fraud at Sydney Water, which was confirmed, the appointment of the chief executive officer of Hunter Water, water supply to the Hunter and the Central Coast regions, and electricity demand management and expansion of generation capacity, particularly with respect to Macquarie generation. At another hearing there were further questions about blackout occurrences, electricity demand management, electricity supply forecasts, underground electricity lines, and a desalination plant proposal, which continues to cause a great deal of debate in the public domain.
The Hon. Duncan Gay: What did they say about it there?
The Hon. JENNIFER GARDINER: That was when it started to hit the deck, because first the Premier had ruled it out, then at the hearing Mr Sartor basically turned government policy upside down. It was a very interesting moment. There were questions about the Metropolitan Water Plan, water restrictions, and drought management strategies. Interestingly, many of the issues raised a year ago inevitably formed the focus of the committee's deliberations into the future, because many of them are still current one year later. Once again, I thank honourable members who contributed for their assistance.
Motion agreed to.
STANDING COMMITTEE ON LAW AND JUSTICE
Report: Review of the Exercise of the Functions of the Motor Accidents Authority and the Motor Accidents Council: Sixth Report
Debate resumed from 24 May 2005.
The Hon. CHRISTINE ROBERTSON [3.22 p.m.]: This is the second time the Standing Committee on Law and Justice has undertaken a review of the exercise of the functions of the Motor Accidents Authority [MAA] and the Motor Accidents Council [MAC] since I have been the chair of the committee. Again, the committee has produced a consensus report. We had a good working relationship with those who assisted us with the inquiry and with the secretariat. It is the sixth report of the Standing Committee on Law and Justice on the annual review of the Motor Accidents Authority and the Motor Accidents Council.
Since November 1999 the Standing Committee on Law and Justice has been responsible for supervising the exercise of the functions of the Motor Accidents Authority and the Motor Accidents Council. Section 210 of the Motor Accidents Compensation Act 1999 provides that a committee of the Legislative Council is to be charged with the responsibility of supervising the exercise of the functions of the MAA and the MAC. The Legislative Council initially appointed the Standing Committee on Law and Justice to undertake this task in November 1999, and the committee was reappointed in the current Parliament. This report is the culmination of the committee's sixth review of the MAA and the MAC. The review was conducted between December 2004 and April 2005. The actual full day of hearings was 15 March 2005, and the committee's report was tabled on 20 May this year.
It has been accepted practice for the committee, in the conduct of its reviews, to examine the annual report of the MAA, to invite submissions from interested stakeholders, and to conduct hearings with representatives of the MAA and the MAC. The scope of the terms of reference allows the committee to inquire 18832 LEGISLATIVE COUNCIL 19 October 2005 into any matter pertaining to the MAA or the MAC, or connected with the exercise of their functions. Particular claims cannot be investigated, but trends and changes in compensation can be addressed. I thank a number of people for their participation in the committee's review. In particular, the contribution of senior managers of the MAA and the MAC in providing the committee with information and oral evidence has been greatly appreciated. I thank the General Manager of the MAA, Mr David Bowen, the Chair of the MAA and the MAC, Mr Richard Grellman, and the Manager of the Insurance Division of the MAA, Ms Concetta Rizzo, for presenting evidence to the committee during its inquiry.
The committee also greatly valued the input of various stakeholders, including legal professional bodies and advocacy groups; the committee is well aware of the time and resources involved in preparing submissions. Through those submissions, a number of important issues were brought to the attention of the committee, and we were able to address them in this report. I give special thanks to honourable members who were members of the committee at that time, who have continued to work well together to deliver on the inquiries for which this standing committee is responsible. I thank the Hon. Greg Pearce, who was the deputy chair of the committee until recently, and the Hon. David Clarke, the Hon. Amanda Fazio, Ms Lee Rhiannon, and the Hon. Eric Roozendaal, who all worked hard to ensure we produced high-quality reports. The committee continues to work well to produce positive outcomes.
It is six years since the Motor Accidents Scheme was significantly reformed by the Carr Government in 1999. During the review the MAA reported that the new scheme is more efficient than the old scheme, and the compulsory third party insurance market continues to be competitive, with premium levels decreasing for the best price for Sydney's class one vehicles. Overall, the MAA and the MAC are fulfilling their functions under the Motor Accidents Compensation Act 1999. The committee has made 14 recommendations to aid the MAA and the MAC to improve the function of the scheme in specific areas. The committee examined several issues relating to the exercise of the functions by the MAA and the MAC and overall scheme performance.
The issues examined include scheme efficiency, MAA funding and its surplus, the MAA's prudential responsibility, and the operation of the MAC and the motor accidents assessment scheme. The function of the MAA in issuing and reviewing guidelines was also explored. One important aspect of the committee's review is the examination of the exercise of the functions of the MAA and the MAC in relation to compulsory third party [CTP] green slip insurance and the practices of licensed insurers. The committee explored several issues, including the state of the CTP insurance market, premium levels and insurer profits. As I said, the MAA advised that the CTP market continues to be competitive, and noted that premium levels have decreased for the best price for Sydney's class one vehicles.
Insurer profit was, as in previous years, a significant issue. The committee has again recommended that a separate and specific report on insurer profit be prepared by the MAA and provided to the committee, as is required by section 28 of the Motor Accidents Compensation Act. The committee also recommended that the insurer profit report should contain greater detail, including the data provided by insurers to the MAA that form the basis for the assessment and the actuarial basis for calculation of profit margins.
Other issues examined by the committee include the gap between CTP insurance and public liability insurance for certain accidents involving motor vehicles, and the green slip help line. The committee examined several issues relating to the making of claims against CTP insurance. Delays in the claims handling process were identified as a key issue for stakeholders and users of the scheme. The MAA advised the committee that it is progressing improvements to the motor accidents assessment scheme process to assist in reducing delays. The committee also examined consumer attitudes to claim forms, claims against the nominal defendant for unregistered vehicles, and establishing loss of income for casual workers.
Several matters relating to the payment of claims were examined by the committee, including compensation for non-economic loss, payments for the catastrophically injured, and a proposal to allow interim damages. Several stakeholders raised the issue of payments for people with catastrophic injuries not lasting the lifetimes of those injured. The committee remains concerned about this issue and has recommended that the MAA further investigate it, including the basis of assessing damages and whether damages could be structured to last the lifetimes of those catastrophically injured in motor accidents. I realise there has been a statement about this matter since, but I wanted to put on the record the situation at the time of the report.
The committee's review included examination of several issues relating to injury prevention, treatment and rehabilitation. Among other matters, the committee looked at public education programs, alternative therapies for injury treatment, and the MAA grants program. The committee acknowledged that the preliminary 19 October 2005 LEGISLATIVE COUNCIL 18833 results of a clinical study into health outcomes for whiplash sufferers were positive, and it looks forward to reviewing the final report on the study. The committee also looks forward to the completion of the three- to five- year strategy for the MAA grants program.
Quite deliberately I have not referred to all the recommendations following last year's review. However, on behalf of the committee I advise that several of the recommendations were implemented within the year, and this made quite a bit of difference to the committee, knowing that this task had been of benefit to the functioning of the process. The committee brought to the attention of the MAA the major issue of compensation for, and classification of, casual workers and their income base.
Pursuant to standing orders debate interrupted.
PUBLIC SECTOR EMPLOYMENT AND MANAGEMENT AMENDMENT (EXTENDED LEAVE) BILL
Bill received, read a first time and ordered to be printed.
Motion by the Hon. Henry Tsang agreed to:
That standing orders be suspended to allow the passing of the bill through all its remaining stages during the present or any one sitting of the House.
Second reading ordered to stand as an order of the day.
RESIDENTIAL TENANCIES AMENDMENT (SOCIAL HOUSING) BILL
Second Reading
Debate resumed from an earlier hour.
Reverend the Hon. FRED NILE [3.34 p.m.]: The Christian Democratic Party supports the Residential Tenancies Amendment (Social Housing) Bill, which was drafted on the basis of the Government's plan for reshaping public housing, which was announced on 27 April 2005 by former Premier Carr. It is said that the reshaping public housing reforms announced in April this year are intended to ensure that public housing is well placed to assist those in greatest need.
There are six aspects to the bill. The first set of amendments deals with providing a process to assess eligibility to continue in public housing and allow for termination when someone is no longer eligible. The bill provides for eligibility for public housing to be based on the concept of housing need, rather than the traditional measure of income level as the primary eligibility criterion. Of course, income will still be a criterion, but housing need will take precedence as the primary eligibility criterion.
The bill will end the policy of public housing for life, which will be replaced by assistance for the duration of need through a range of renewable leases from two to ten years. Specifically, the current regime allows for a person who does not breach the tenancy agreement to enjoy the benefits of public housing for life regardless of housing need. The policy behind the bill is that all new tenants from 1 July 2005 will be placed on a fixed-term lease commencing some time after July 2006. These leases will range from two to ten years.
The tenure of the lease will be proportionate to the perceived need of the tenant as determined by the Department of Housing. Thus, the ten-year leases will be aimed at households most in need, perhaps elderly pensioners or individuals who are disabled and with persistent difficulties. The five-year leases will be aimed at households, such as families with children at school and those whose circumstances may change when their children's schooling is complete, or households in which the parents are undertaking training to move into the work force or change jobs. Two-year leases will be provided to individuals with issues that may be addressed within that time frame—for example, homeless people.
The second set of amendments relates to ensuring consistent treatment of tenants and operational flexibility for landlords despite long fixed-term leases. The introduction of fixed-term leases for up to 10 years will involve a major change in operations for social housing landlords. It is necessary that the social housing system that encompasses and administers 138,000 properties be operationally flexible. Some discretion is needed in managing properties that are used by public housing tenants. 18834 LEGISLATIVE COUNCIL 19 October 2005
One of the most significant changes this bill will make can be found in proposed section 9A, which will enable regulations to be made to introduce particular terms or conditions to apply to all social housing leases. This will allow any changes to policy to be introduced for all tenants at the same time. The principle underlying these changes is to ensure consistency among social housing tenants regardless of when they sign their tenancy agreements or the length of their agreements. Consistency is important, especially when so many clients are provided services. However, some flexibility is required when the circumstances of clients differ. Some discretion is needed to cater for the specific needs of the public housing tenants affected.
Charging for water usage is perhaps the most controversial provision in the bill. We have been raising concerns about this provision in this House. On 15th September Reverend the Hon. Dr Gordon Moyes asked:
Is the Minister aware that the Department of Housing plans to bill its tenants for water charges? In particular, is the Minister aware that about half the number of public housing tenants do not have their water charges separately metered and will be charged based on the water consumption of the entire property?
As far as I am aware, no answer was given to that question. One could argue that the bill is the answer to the question. Charging for water usage is a most contentious issue. We have received a number of representations from public housing tenants, including the peak organisations representing the interests of public housing tenants such as Shelter NSW, which shared its concerns with us at a crossbench meeting. Proposed section 19A provides:
It is a term of every housing tenancy agreement that the tenant must pay to the landlord any charges, determined in accordance with guidelines approved by the Minister, in respect of water usage by the tenant.
The Minister, in determining the water charge attaching to public housing tenants, may take into consideration such things as the actual usage or estimated usage, the income of the tenants, the rent payable for the premises to which the agreement relates, whether with or without rent rebates, and the Minister may require water usage charges to be paid by the tenant in advance of actual usage. It is clear that putting water meters in every unit of public housing would involve a massive cost. However, we would still like an assessment of how much it would cost because the system to be introduced will cause some conflict and divisions among public housing tenants. A senior citizen may use hardly any water but down the road a family of a couple of adults and five children may use a lot of water yet both households will be charged the same, and this could lead to tension or problems in the way those people get on with each other.
Another important aspect of the bill is the extension of the reshaping reforms to the Aboriginal Housing Office and potentially to community housing. As I visit Aboriginal communities I am pleased to see the very fine houses that are being built in various locations. I refer particularly to Mulli Mulli near Woodenbong near the Queensland border. The fine brick homes that have been erected in that Aboriginal community are being well cared for by the families there. These amendments will ensure that the public housing system is focused on housing people who are most in need and that the available supply of housing is shared fairly among those people. As with other legislation containing major changes, its operation will need to be monitored and amendments may have to be introduced to deal with perceived problems. The bill is a step in the right direction and should be given a fair trial.
The Hon. JON JENKINS [3.42 p.m.]: I also support the bill. However, I have concerns about some of the eligibility and water usage issues. On eligibility, people's circumstances change and if they get part-time work they may suddenly become ineligible for public housing. Will they then be removed? How do we handle people's changing requirements—sometimes they change dramatically within a short period. I realise that these are operational issues but we need reassurance that there is planning for this. With regard to charging for metered and unmetered properties—this is obviously a controversial issue—in discussions with respective advisers I suggested that after passage of the bill there be a review to assess how water metering charges are progressing, to assess fairness of application between metered and unmetered properties, whether on a per- person or per-household basis, after useful statistics have become available. To that end I will move an amendment in Committee. That is an operational issue. I have suggested that the Energy Ombudsman could assess how the charges are being apportioned and whether the system is relatively fair. Other than those points, my concerns are fairly minor.
Ms SYLVIA HALE [3.44 p.m.]: Before I turn to the specifics of this bill it is necessary to provide an overview of the affordable housing problem that plagues Sydney and other areas of the State. I will also refer to social housing practice in other global cities and make clear why it is important to reverse the current direction of the Government's housing policy as exemplified in the bill. On coming to office the new Premier, Morris Iemma, said that he considered affordable housing to be a priority, along with disability and health. It was a 19 October 2005 LEGISLATIVE COUNCIL 18835 matter of simple decency, he said. Everyone was pleased to hear his words but the substance, as manifested in this bill, gives the lie to those words. The Governor of the Reserve Bank, Ian Macfarlane, on 12 August 2005 said:
[Sydney is] so expensive that particularly for a lot of young people, it's in their interests to go elsewhere, where their lifestyle is more affordable and for older people, a lot of them I think are cashing out. Sydney is still extraordinarily expensive.
I have to say I get a little impatient when I hear of the real estate industry in New South Wales saying what we have to do is get house prices going up again, that somehow or other that's going to save New South Wales. That's Sydney's problem, it's not its solution.
Mr Macfarlane advised young people to flee Sydney because they can never afford to buy a home here. And it is not just the cost of buying a home: rents are high enough to put many people on low to medium incomes into housing stress. That is, they need to spend more than 30 per cent of their disposable incomes on rent. Although we hear much about how many people are coming to Sydney, we hear less about who is deserting it. The research of Adelaide university geographer Graham Hugo shows that Sydney loses a net 15,000 people each year. Half go to the other States and Territories and half go to the coast. One might think that most of these émigrés are retirees, but this is not so. Many are in their twenties and thirties with young children. The Australian Bureau of Statistics estimates that in the three years to mid-2004 New South Wales lost a net 11,400 people aged under 40. Housing costs were obviously a factor in this movement.
Eventually, as those on median incomes leave, Sydney will become even more dysfunctional than it is now. Some North Shore councils such as Willoughby are starting to research the problem of recruiting staff. A recent study by the University of Western Sydney, the New South Wales Labor Council and Shelter NSW found that many essential service workers, if they have managed to buy into the housing market, are travelling incredibly long distances to work or living closer to their work but paying high rents. Research by Professor Judy Yates from the University of Sydney has shown that a growing number of people are becoming perpetual renters and that the assumption that renting is a transitional form of housing tenure is not founded in fact. Unlike renters in some European countries, renters in New South Wales have a very limited security of tenure. In fact, they have not much at all, considering that they can be required to vacate for no reason at all provided they are given 60 days notice.
The review of the Residential Tenancies Act makes vague noises about the desirability of landlords offering longer leases. But landlords who are keen to capitalise on their investment will resist tying property up in long-term leases. At the same time the Government is bringing in new policies for public housing tenants designed precisely to erode their security of tenure, to make their leases shorter. They will be subject to renewable leases. These policies are known as "Reshaping Public Housing". The Greens believe that these policies, part of which are supported by this bill, are more about residual lies than reshaping public housing. We really do need action not stock platitudes or the "market-will-deliver" responses that we have heard from the Government. A government and Premier truly committed to public housing would triple the size of the social housing sector over the next 10 years and broaden eligibility to ensure tenant diversity and cross-subsidisation from a mix of rents.
I will not enumerate all the other measures that could accompany this. I have raised them before in this House and they are set out in detail in papers presented to the National Affordable Housing Conference earlier this year. If all these measures were instituted, preferably underpinned by Federal Government money or tax subsidies, we would be on the way to addressing the high housing prices that bedevil Sydney and other Australian cities. All these measures have been discussed ad nauseam at conferences on housing affordability, and by the State and Territory housing Ministers. Why are we still waiting for genuine action? New South Wales could show genuine leadership and start the process. It is either that or wait until Sydney and other parts of New South Wales become even more driven by the divides of wealth and poverty, advantage and disadvantage, secure housing and homelessness.
In European countries the social housing sector is broader and more diverse than it is in Australia, and it provides housing for up to 30 per cent of the population of those countries. The United Kingdom, for example, has an extensive social housing sector which houses 30 per cent of the population. The sector consists of what are known as registered social landlords, a category that includes councils and not-for-profit housing associations and co-operatives. Almost all of those organisations are funded by grants from the Housing Corporation, by rent revenues and by borrowings against assets. Tenants also receive a housing benefit that is paid directly to the landlord and ensures that rents are affordable. The housing benefit is much more generous than the Commonwealth's capped rental assistance payment. 18836 LEGISLATIVE COUNCIL 19 October 2005
Councils and housing associations in the United Kingdom generate a surplus, which they can reinvest in maintenance and new housing. The United Kingdom's registered social landlords usually make a surplus, which is used to repay loans and pay for maintenance, building or purchasing new stock and renovation. How is it that the United Kingdom does this, but government social housing providers in this country lose money? Very simply, the social housing sector in the United Kingdom embraces a large enough proportion of the population to allow for cross-subsidisation, and government provides subsidies. In addition to this social housing stock, new housing stock is made available for rental or purchase within private developments in the United Kingdom. This is made possible under section 106 of the Town and Country Planning Act.
Over time London developed a huge affordability problem. To address this the mayor of London, Ken Livingstone, set a target of 50 per cent of affordable housing in all new developments. Affordable housing is basically below market cost or subsidised housing. We should look at London if we want to see what Sydney's future should be. Like Sydney, London and similar cities, such as Tokyo, are global cities—centres for the new economy, and finance and related industries. In London teachers, nurses and other essential service workers could not afford to live close to their workplaces because the escalation of incomes drives up house prices and rent, meaning that housing costs escalated. Many simply moved out of London to smaller towns, or started working in areas closer to their far-flung home suburbs. A shortage of labour in certain sectors ensued.
The United Kingdom Government and municipal councils were forced to address this problem through the Key Worker Housing Scheme. Under this scheme, units of social housing are earmarked for certain categories of workers in certain boroughs. A worker can apply for this housing and either buy it at a discounted rate, or a proportion of it, or rent it. Some of this housing is literally part of the work site. For example, teachers' residences have been located on school land. We have done practically nothing in New South Wales—I say "practically" because there is one block of units in Thornleigh owned by the Department of Housing and dedicated to housing essential service workers. It is one block of units of, I believe, about eight apartments. So we have in fact housed eight key workers. This is a pilot project only.
What we should be doing in Sydney is what Ken Livingstone has done and is doing in London: mandating the inclusion of affordable housing in all new multi-unit developments. There are few examples of this in New South Wales because the Environmental Planning and Assessment Act currently prohibits the levying of developers for affordable housing purposes, except where the areas are listed in State environmental planning policy [SEPP] 70. Two areas are currently listed in SEPP 70—the City West designated areas in Ultimo, Pyrmont and Green Square, and the North Sydney local government area. Developers within these SEPP 70 areas can be levied in the order of 3 per cent.
City West is a thriving housing company because it was given a good start. Money to set it up came from the developer levy, the Federal Government and the State Government. City West illustrates how a housing company providing affordable housing can work if it is set up at the beginning with enough stock and tenant income mix. Dare I use a cliché, but City West proves, and overseas evidence proves, that running a financially viable, affordable housing association is not rocket science. It is relatively easy to set up a housing association. What is needed is start-up money. After that, good management and in-house development and maintenance can keep costs down. We have to remember that prior to the 1980s the Department of Housing covered its costs and was in fact a financially self-sustaining operation.
The Greens have developed a bill to extend these City West type schemes throughout New South Wales by removing the barriers to this from the Environmental Planning and Assessment Act. I will introduce that bill when I have the opportunity to do so. Councils want it. They are struggling with the lack of affordable housing and Department of Housing stock is very scarce—especially in areas such as Tweed Heads and Byron shire, which are now inordinately expensive. It seems a bit sad or remiss that the Government has not done this already and caught up with London and other world cities. Such housing would be a supplement to the already existing public housing stock, housing workers as well as those not in the work force, such as the elderly, those on pensions and young people who are studying.
Another model to consider is the Netherlands model of social housing. The Dutch Government set this up by providing long-term loans to housing associations. I am informed by a briefing paper on expanding affordable housing supply in Australia that:
… over 40 per cent of the total stock in the Netherlands is in the social housing sector, most of that in the form of non-profit housing associations. The Dutch Government has capitalised future annual subsidies and applied this amount to cancelling the outstanding debt of the housing associations sector on its existing stock. This means that the sector now has ownership of a valuable resource that serves as the collateral on which— 19 October 2005 LEGISLATIVE COUNCIL 18837
The Hon. Melinda Pavey: Point of order: Madam Deputy-President, I point out the constant jabbing, and the unruly and rude interjections from the Labor Party while Ms Sylvia Hale is delivering her second reading speech. I ask you to bring your unruly Labor members to order.
The DEPUTY-PRESIDENT (The Hon. Kayee Griffin): Order! I remind all members that interjections are disorderly at all times.
Ms SYLVIA HALE: I assure you, Madam Deputy-President, that I will simply remain silent while the chattering continues and resume my speech when it has stopped. The briefing paper to which I was referring continues:
The Dutch Government has capitalized future annual subsidies and applied this amount to cancelling the outstanding debt of the housing association sector on its existing stock. This means that the sector now has ownership of a valuable resource that serves as the collateral on which individual housing associations borrow to finance additions to their stock. About 90 per cent of new dwelling construction by the associations is financed by bank-provided loan finance.
Scandinavian countries also have extensive social housing sectors, including a significant co-operative sector where people live in discrete dwellings but share some facilities such as common rooms, children's playgrounds and playrooms, and laundries. We have a limited number of government-funded co-operatives here, but those we do have are often very successful. The Greens will not support this bill without significant amendments, which I will outline later. I note here the comments of Clover Moore on this bill in the other place and her attempt to amend the bill along similar lines. I note also the Hon. Jon Jenkins's amendment, which the Greens also intended to move because it will act as a slightly ameliorative measure.
The bill underpins the policies known as Reshaping Public Housing. These policies continue to ration, reduce and take public housing away from more people. The Greens will oppose most of the content of the bill as it allows for the implementation policies that discriminate against public housing tenants. We do not believe that the content of Reshaping Public Housing progresses social housing; rather, it regresses it to an era of alms for the poor. Rather than diversifying social housing, the Government is narrowing eligibility. Rather than opening doors, it is closing them. Rather than allowing low-income workers to live in public housing, and therefore help cross-subsidise rents, the department will be asking them to leave public housing. Rather than building more public housing, the Government is demolishing, redeveloping and selling off public housing to its developer mates.
Public housing is being cannibalised, and this bill will have the effect of speeding up the process. These policies interact very badly with Federal policies and Centrelink rules. What happens to the single parent who is being asked by Centrelink to take a job, when she knows that if she takes a job that pays the median wage she may lose her public housing because she will no longer be eligible? No thought seems to have been given to this; it is another example of dysfunctional federalism at work. The Government has a bad habit of pursuing self-defeating policies, and then asking why social problems and disadvantage are concentrated in some public housing estates. Certainly there are no easy answers.
But surely restricting eligibility even further than it has already been restricted is a clue that the Government will not significantly expand supply, and as such has to ration more tightly the crumbs that are left. The Government saves money in one way but, over time, it costs more because the Department of Housing will be operating with a greater deficit. If the Government has these assets worth billions, why not use them to build a revenue-neutral outcome, and house more people at the same time? It is the Government's current policies and the policies of the past that have led to this situation.
The Reshaping Public Housing policies are nothing short of a recipe for continued decline. The Government is squandering a resource put in place by its post-war Labor Party predecessors. However, it is not too late by any means to take a more positive attitude to social and affordable housing in this State. While the Greens have great misgivings about many provisions in the bill, because the bill is symptomatic of a dead-end approach, we are committed to dialogue with the Government and the Minister for Housing. We regularly talk to public housing tenants and others about how to make real improvements. Unfortunately this bill continues on the wrong path. It is not a positive piece of legislation, although it does contain a couple of changes that the Greens support.
The Minister for Housing, Cherie Burton, outlined the six main intentions within the bill. I will now speak to them. The Minister opened with the statement, "These reforms focus on the fair allocation of scarce resources to those most in need in our community." Is social housing a scarce resource, and if so, why and who 18838 LEGISLATIVE COUNCIL 19 October 2005 has made it scarce? The Commonwealth is certainly partially to blame, as it has reduced funding in real terms under the Commonwealth-State Housing Agreement. However, the New South Wales Labor Government has allowed public housing to slide into an untenable position, entirely through its own efforts and policies. In the 1980s the Government decided to ration public housing more tightly, and that is when the downward spiral began.
Minister Cherie Burton herself was a resident of public housing in her childhood. We do not know whether her family would have been affected by these policies had they been in place while she was a public housing tenant. She may have benefited from the previous policies, which allowed workers to live in Housing Commission houses. I wonder whether our housing estates today are being managed in such a way that kids living in them now can grow up aspiring to be a Minister in a State government. The Minister claimed in her second reading speech that there would be "significant investment in the renewal of public housing". The New South Wales Government has matched and exceeded the Commonwealth's contribution, and that is praiseworthy. The last budget contained a promise that the money will be spent over 10 years. However, this money is not enough to turn around the department's ongoing basic problem: that public housing does not generate sufficient income to pay for itself because it does not house enough people—or enough people on sufficient incomes.
The social housing sector would need to be about triple its current size to house everyone in need. It would need to be three times its size to reach economies of scale and be financially self-sustaining. The needy will be housed first; we agree with the Government on that. But over time, if supply is expanded, a broader range of people could be housed. This would bring the social housing sector to about 15 per cent, instead of the current 5 per cent, of the total housing sector, which is still only half the size of the United Kingdom's 30 per cent. Then public housing would pay for itself and house the sort of people that it used to house prior to the policy of hyper-rationing—namely, low to median income workers. The Government would benefit from the extra income. The Minister also said in her second reading speech:
The New South Wales Government is committed to allocating the valuable resource of public housing to those most in need because this approach delivers the best outcomes. Well-targeted public housing assistance provides the opportunity to maximise the outcomes of health, welfare, educational and support services provided to tenants by other New South Wales agencies. It provides the best outcome for Government and, more importantly, for the people in greatest need.
I have been told that so many times by tenants who have gained from affordable and, most importantly, stable housing. But when the Minister says allocating resources to those most in need will provide the best outcome for government, the Greens beg to differ. Narrowing eligibility and moving people earning median incomes out of public housing does little for the overall diversity of the community. It can increase concentrations of disadvantage. At a recent forum on poverty held in the Parliament, Professor Bill Randolph told us that concentrating disadvantage in public housing estates is now out of favour in other countries with social housing sectors. Yet the policies suggested in Reshaping Public Housing narrow eligibility.
Although the department is reconfiguring some of its estates, such as those at Minto and Bonnyrigg, this has involved the sell off or partial privatisation of a portion of these estates. Minto has been a disaster, and for that we have only to thank the former Minister, Carl Scully, who we should call the Minister for botched public-private partnerships [PPPs]. While the Government is happy to create a greater social mix in newly valued suburbs such as Minto by selling some of its land to private developers, will the logic of social mix be extended to middle-class enclaves, for example, those on the North Shore? Should we have more social and affordable housing in well-located areas such as Vaucluse or Cammeray mixed in with private housing? Or is social mix something that occurs only in low-income yet appreciating areas, where public housing that is appreciating in value is sold off to private home buyers?
The Greens agree that the most needy must be housed first, but we believe that creating a greater and more diverse pool of affordable housing should be funded by grants from the State and through levies on the private sector. The Government's record has been disappointing. I do not think that the current Minister for Housing's predecessors, Messrs Scully and Tripodi, showed that they had much real interest or vision for the New South Wales social housing sector. Mr Scully's contribution was, as I have said, a botched PPP at Minto, and Mr Tripodi confined himself to insinuating that public housing tenants drove around in BMWs.
The Hon. Melinda Pavey: Disgraceful.
Ms SYLVIA HALE: Indeed, it was disgraceful, and many public housing tenants thought it was disgraceful. Department of Housing staff have had to put up with constant ministerial changes and endless 19 October 2005 LEGISLATIVE COUNCIL 18839 restructuring. We are hoping that the new Minister will be able to think bigger, provide some stability and really take on the task of revitalising social housing in this State. I turn now to the details of the bill. The eligibility to continue in public housing can be assessed at the end of the lease and allows for termination where the tenant is determined to no longer—
[Interruption]
The Hon. Melinda Pavey: Order!
The Hon. Amanda Fazio: Point of order: As much as I dislike the contribution of the Hon. Sylvia Hale, I have been attempting to follow the standing orders and listen in silence to her contribution, but in the latter part of her contribution I am having great difficulty doing that, given the continual interjections of the Hon. Melinda Pavey, including some delusion that she has the right to start shouting "Order!" like a demented parrot. I ask you to call the Hon. Melinda Pavey to order so that we can hear the contribution of the Hon. Sylvia Hale, which may finish more quickly than otherwise.
The DEPUTY-PRESIDENT (Reverend the Hon. Fred Nile): Order! Members should not use terms that are derogatory of the Chair in order to confuse the member who has the call.
Ms SYLVIA HALE: It is difficult when there are such insightful contributions to the debate, such as I have heard from the Hon. Amanda Fazio. As I said, the Government's record has been disappointing. I will now turn to the details of the bill. The eligibility to continue in public housing can be assessed at the end of the lease and allows for termination where the tenant is determined to no longer be eligible.
The Hon. Don Harwin: Point of order: The noise being made by the Hon. Henry Tsang, the Hon. Amanda Fazio and the Hon. Jon Jenkins is so great that the Hon. Sylvia Hale is unable to continue her contribution. I ask you to call all of those members to order and request them to observe the standing orders.
The Hon. Amanda Fazio: To the point of order: Earlier in her contribution the Hon. Sylvia Hale indicated that if she felt people were talking and not paying attention to her she would stop speaking until there was complete silence in the Chamber. That is a decision she made, but I do not think that one individual member has the right to impose those conditions on everyone else in the Chamber. I think that the level of noise that the Hon. Don Harwin was referring to was no greater than normally occurs in the Chamber. I ask you to rule against the point of order, but ask the Hon. Sylvia Hale to keep speaking without having these very long pauses—for dramatic effect, I presume.
The DEPUTY-PRESIDENT (Reverend the Hon. Fred Nile): Order! The Hon. Sylvia Hale will return to her speech and other members will reduce the level of chatter in the Chamber.
Ms SYLVIA HALE: Could I point out that I have forgone the honorific title of "honourable" and I would appreciate it if members would respect that decision. As I was saying, the eligibility to continue in public housing can be assessed at the end of the lease and allows for termination where the tenant is determined to no longer be eligible. This more easily allows the department to move tenants out where the tenant, for example, has a job. We forget that as recently as the 1980s it was considered acceptable to work and live in public housing, as long as the tenant paid a higher rent proportional to income, or market rent when the tenant's income exceeded a certain threshold. These higher rents helped to cross-subsidise other lower rents. This is how the United Kingdom system operates: councils and registered social landlords operate their housing with a mixed- income base. We are not talking about housing millionaires, just ordinary people on the median wage.
If the Labor Government had not lost touch with progressive social policy, it would look overseas or even interstate and see how far out of step New South Wales is on the issue of public housing. I will take one example from the Gloucestershire Rural Housing Association in the United Kingdom. On its web site in regard to applications for housing, the association says:
Lettings will normally be to those in greatest need, although the association will also have regard to using the stock effectively, reducing the number of empty and under-occupied properties, improving the turnaround time for void properties, maximising rent income and creating balanced communities.
I ask members to note the last line, "maximising rent income and creating balanced communities". The New South Wales Department of Housing has no such aims; in fact, it wants to minimise rental income, minimise stock and create more disadvantaged communities. The United Kingdom also assists with the payment of grants 18840 LEGISLATIVE COUNCIL 19 October 2005 to registered social landlords. The Blair Labour Government at least has some commitment to a certain standard of living. It works to targets and has shown an ongoing commitment to the social housing sector. That enthusiasm has not been shown in New South Wales. The Greens agree that there has to be some eligibility requirement, but we need to expand supply and widen eligibility over a 10-year to 15-year period so that people earning up to 120 per cent of the median wage would remain eligible and more people could be housed to create the cross-subsidies required. The Minister in her second reading speech said:
At the end of these agreements, tenants will have to demonstrate an ongoing need for public housing.
The Minister here is referring to fixed term tenancy agreements of two, five or 10 years. The eligibility criterion for public housing allocation is already very stringent. To have any chance of actually being allocated a dwelling in under 10 years, a tenant needs to be on a low income, that is, specifically earn less than $395 a week gross income, if single, or less than $500 a week gross income if part of a couple. The second criterion is that they must be able to live independently and without support. One might then be put on the wait turn list, but it is well known that almost all allocations are not from the wait turn list but from the priority list, and that over 50 per cent of all applications are priority applications.
To be on the priority list one needs to have some, or preferably all, of the following attributes: be homeless or at risk of homelessness; be in an at-risk situation, such as domestic violence, sexual assault, child abuse, threatening behaviour by one or more household members against another, torture and trauma; a severe ongoing medical condition; have a disability; be living in overcrowded accommodation, accommodation without essential facilities such as water; and be over 80 years of age. Finally, prospective tenants have to show an inability to live in the private rental housing market. One of the criteria for this is affordability of private rental housing. The Department of Housing policy states:
Rent is considered affordable if it does not exceed 50 per cent of the household's total gross weekly income.
To be paying 50 per cent, that is, paying half of gross income on rent, is considered affordable by the Department of Housing. That the department deems 50 per cent of income being spent on income as affordable would be news to housing experts, academics specialising in housing economics and even mortgage lenders. Housing affordability is widely accepted to be when a person in the lowest 40 per cent of income distribution is paying less than 30 per cent of their disposable income on housing. I could cite many different academic publications, including papers from the Australian Housing and Urban Research Institute, that use this measure. Even Centrelink uses a similar measure when it is calculating how much rent assistance to pay its clients in private rental.
But the Department of Housing in New South Wales does not follow the same definition of affordability as everybody else. This is probably because the department knows that if it adopted the 30 per cent benchmark, suddenly many people struggling in the private rental market would be deemed in urgent need and be added to the department's waiting list. Now the Government wants to make it easier to terminate tenancies as soon as people have managed to stabilise their lives and get a job. Public housing tenants will be turfed out into that great paradise of housing choice, the private rental market.
In the private rental market tenants will pay more rent, probably more often, leave their community and move their children to different schools. The private landlord gives them a 60 days no grounds notice to leave. Rents can rise with 60 days notice and there is no limit on rent increases in New South Wales. A recent one-day conference held by Shelter New South Wales examined research showing that public housing support leads to improved outcomes in areas such as health, education and social cohesion. Tenants benefit enormously from the affordability and stability that public housing offers.
The loss of secure housing can result in reduced health, education and general wellbeing. For a parent with children, this can mean their child has to change schools. Studies show that the more times a child changes schools, the worse the education outcome. A study by Professor Peter Phibbs from the University of Sydney has confirmed this. Also, the estate from which the tenant is removed might lose a valuable member of the community. Recently Annie Atkinson, a Glebe public housing tenant, addressed the crossbenchers and explained her involvement and that of other tenants in their community, undertaking volunteer work and looking after the elderly. Two other tenants in their sixties from Glebe are about to lose their housing. One has lived in the Glebe estate for all of her 60 years. She cared for her mother for many years. Both she and her partner now work part time and casually, and are about to retire, but they are also about to lose the home in which they have lived for more than 20 years. 19 October 2005 LEGISLATIVE COUNCIL 18841
All the changes proposed in the bill are designed to make it easier to terminate people's tenancies as soon as they start earning a reasonable income. What the Government will accomplish by this is twofold: a loss of revenue when tenants earning an income and paying market rent lose their tenancies and a concentration of unemployed or not-in-the-labour-force people in public housing estates. This latter point is contrary to the department's stated policy of creating greater social mix. This bill will ensure that a disincentive to work is built into public housing rules. A tenant may choose not to enter the labour force or choose to reduce their working hours in order to remain eligible for public housing.
Tenants have recently brought to my attention that if they want to move to the private rental market, astonishingly the policy of the Department of Housing is not to provide them with a reference. Anyone who has applied for private rental knows that real estate agents perform credit checks and want references from previous landlords. Refusing to give a reference to a tenant wanting to make a move makes no sense at all. It is difficult enough for many former Department of Housing tenants to access the private rental market. The last thing they need is discrimination from the department.
I turn now to proposed section 9A, which relates to extension of terms in standard form of residential tenancy agreements. This section proposes to overturn the current lease provisions with respect to any term of those leases. This is a retrospective measure that will override a contract, that is, the tenant's lease. Laws overturning contracts signed at a past date, where a person relied on the terms within that contract, are not a good idea and the Greens do not support this part of the bill. A private tenant relies on the terms of their lease; a retail tenant relies on the terms of their lease; and social housing tenants should also be able to rely on the terms of their lease.
Proposed section 19A is probably the most unfair provision and is contrary to the user pays principle that the Government appears to advocate. This provision would allow the Department of Housing to impose a charge on all tenants supposedly for water. The charge, however, is not related to water usage where a tenant's premises have no water meter. It is not even related to the actual water bill. So even calling it a water charge is misleading.
Charging for water where premises are not separately metered is currently prohibited in the Residential Tenancies Act, for obvious reasons. People renting in the private market in older style units that are not individually metered do not pay water usage charges. But this has not stopped the Department of Housing from trying to impose a water tax on public housing tenants. The bill proposes that social housing tenants be charged an amount of money ostensibly for water but not based on actual usage of water. This part of the proposed legislation is objectionable for two reasons. It is not a charge for water as is claimed, and it does not adhere to the user pays principle. The amount charged supposedly for water will be based on three things outlined in new section 19A: estimated or actual usage, the income of the tenant, and the rent payable, which is determined by the income of the public housing tenant.
Moreover, tenants such as a pensioner couple would pay something like $3.70 a week supposedly for water, but people who live in similar blocks of units in private rental or in units they own often pay less than this each week for water. So the Department of Housing may be ripping off tenants. The department's pensioner tenants may pay more than the water actually costs. I am amazed that the Opposition has decided not to support the deletion of these provisions from the bill. The Minister's argument in her second reading speech in defence of this part of the bill is illogical as this section of the bill is indefensible. The Minister said:
Charging for water usage will promote responsible water usage and complements existing strategies to install water efficient devices in public housing.
To suggest that this bill will promote responsible water usage is misleading. The key word is "usage", that is, people being charged for what they use. This bill allows tenants without meters to be charged for water that they may or may not use. The Minister explained how the charges will work for those tenants with water meters. She said:
At the outset all tenants will be levied with a water usage contribution charge of 4.1 per cent of their net rent or a little over 1 per cent of their household income. After the few months of operation, tenants with separate meters will have their accounts reconciled with actual usage and their charge will be adjusted.
One wonders why tenants with water meters cannot simply have bills sent to them, perhaps on a monthly basis as most private tenants do. The other objectionable aspect of this part of the bill is that tenants will have to pay up front before they use any water. Most of us are not asked to pay for utilities before we receive the bill. The 18842 LEGISLATIVE COUNCIL 19 October 2005 more one thinks about it, the more ridiculous new section 19A seems. It is an attempt to claw more money out of tenants, dressed up as an environmentally friendly initiative. The Minister said:
If their actual usage has been less, they will receive a credit. If it has been more, they will be advised and their charges will be adjusted upwards, but there will be no outstanding charge.
I am not even sure what that means. Will their charge go up or down? Will the department charge the amount of the actual water bill? What if the amount collected by the department is greater than the actual water bill? Will tenants get a refund? What happens to the interest the department earns by garnishing the tenant's money prior to incurring the expense? The Minister said:
Given the need to levy a charge on tenants without separate meters to maintain equity with metered tenants, this is a fair basis for assessing a watered charge.
The Minister makes a jump in logic by saying that the charge is therefore fair. However, there is a big difference between the two classes of tenants that the department will create—those with water meters and those without. Those with meters get to pay an amount that is based on their actual usage, although again this will vary with their income. Those without meters will have to pay a charge totally unrelated to actual usage yet it may still be based on their income. Most people would feel outraged if Telstra sent them a bill based on the telephone usage of the average householder. Most people would not pay for a utility prior to using it. This bill will impose unfair requirements on one section of the community—social housing tenants.
The Greens hosted a forum for social housing tenants in June 2005. More than 100 people attended. The then Minister for Housing, Joe Tripodi, was invited but did not attend. One of the public housing tenants on the panel asked the crowd to raise their hands if they would be willing to pay for water as long as the charge was based on actual consumption. More than 80 per cent of people raised their hands. Tenants are not opposed to contributing their fair share, but they believe that imposing a bill based on an arbitrary estimation of consumption is manifestly unfair. Many tenants at the forum spoke about their commitment to reducing water usage. Tenants do care.
The department has other choices in relation to water without having to change the law. A public housing tenant can pay for water now where there is a separate water meter. It is perfectly legal if that is provided for in their lease. That is already in the Act. The department can install water meters in all premises over time. We suggest that the department also follow up on its commendable fitting of water saving appliances, rainwater tanks and grey water systems to reduce water usage over time. Tenants who waste water are subject to the same laws as anyone else. Another approach the department could take is to look at water usage for a block of units with no separate meters. Where water usage is much higher than one would expect, the department could then write to or meet with tenants and work together to reduce water use collectively. The Greens would support this kind of co-operative and constructive measure.
New section 19B provides that the department can ask a tenant with an outstanding debt to agree to pay back the debt in instalments plus rent. The Tenants Union and Shelter New South Wales commentary paper drew attention to the Minister's statement that "the debt under the old tenancy agreement would then become a mere civil debt" were it not for this provision, and pointed out that this was incorrect.
At present, a landlord can take action to recover a debt arising under a previous fixed term by taking action under the current fixed term tenancy agreement. The tribunal is there for a reason, however this provision attempts to obviate the necessity for the department to go to the tribunal and therefore to get around the tenant's right to dispute any claim of debt. The Tenants Union and Shelter New South Wales are concerned that this provision might allow a social housing landlord to recover alleged debts that otherwise have not been determined by a court or tribunal to be owing, and also allow the department to recover debts that would otherwise be barred by the Limitation Act 1969.
This bill is a bitter disappointment to many public housing tenants and to key stakeholders working in the sector, including the Tenants Union, Shelter New South Wales and the Council of Social Service of New South Wales. The Greens will move amendments in Committee in an attempt to ameliorate the worst elements of the bill.
The Hon. HENRY TSANG (Parliamentary Secretary) [4.40 p.m.], in reply: The Residential Tenancies Amendment (Social Housing) Bill will implement the important New South Wales Government strategy on reshaping public housing. The strategy—which is aimed at meeting the many sustainable challenges facing public housing by better matching allocation of housing with the need of those most vulnerable—was 19 October 2005 LEGISLATIVE COUNCIL 18843 announced by the former Premier in April this year. The reforms to the principal Act are critical in that they focus squarely on those most in need in our community. As the housing Minister has said in the other place, these reforms will foster a strong sense of tenant responsibility, and efficient and effective public housing provision, and will allow for significant investment in the renewal of public housing stock.
Let me respond to the issue raised by the Opposition. Under these reforms the allocation of housing to those most in need is paramount. At the expiration of the tenants' lease the tenants will need to be assessed and if that need no longer exists the lease will not be renewed. The issue of water was also raised by Reverend the Hon. Dr Gordon Moyes and Reverend the Hon. Fred Nile. It is important to note that the regime established by this legislation is based on equitable principles and responsibility. People on metered properties who suffer hardship from the amount of water they use—for example, the elderly, the disabled or those on dialysis— may apply for the percentage rate. Unmetered charges track closely to the composition of the household because charges are tied to income, and around 90 per cent of public tenants rely on Centrelink.
In relation to water conservation, the department initiated a retrofit program that is currently available to tenants. The current program with Sydney Water will see a planned take-up of 20,000 dwellings. These reforms will also enable the Government to deliver its $2.7 billion program to build 30,000 additional homes over the next 10 years.
I will now respond to some of the remarks by the Hon. Jon Jenkins on changing characteristics affecting eligibility. The Government draws attention to proposed section 63C, which will allow the criteria for continued eligibility to vary from those used for assessing entry. For example, this could be used to permit tenants with moderate but insecure or fluctuating incomes, such as from casual wages, to remain in public housing. In addition, for those whose need really ceases, the New South Wales Government has and is refining a full affordable housing strategy to help moderate income earners into new housing options. The Government accepts the Hon. Jon Jenkins's suggestion that a review by the Energy and Water Ombudsman be conducted after two years of the water charging regime to evaluate and assess its equitability. I thank the Opposition for supporting this bill in full. It is an important contribution to the future of public housing for our State's most vulnerable. I commend the bill to the House.
Question—That this bill be now read a second time—put.
The House divided.
Ayes, 22
Mr Catanzariti Ms Griffin Ms Sharpe Mr Clarke Mr Jenkins Mr Tsang Mr Colless Reverend Nile Mr West Ms Cusack Mr Obeid Dr Wong Mr Donnelly Ms Parker Ms Fazio Mrs Pavey Tellers, Mrs Forsythe Mr Pearce Mr Harwin Miss Gardiner Ms Robertson Mr Primrose
Noes, 4
Mr Breen Mr Cohen Tellers, Ms Hale Ms Rhiannon
Question resolved in the affirmative.
Motion agreed to.
Bill read a second time. 18844 LEGISLATIVE COUNCIL 19 October 2005
In Committee
Clauses 1 to 4 agreed to.
Ms SYLVIA HALE [4.56 p.m.], by leave: I move Greens amendments Nos 1 to 10 in globo:
No. 1 Page 3, schedule 1 [2], lines 10–18. Omit all words on those lines.
No. 2 Page 3, schedule 1 [3], lines 19–35. Omit all words on those lines.
No. 3 Pages 4 and 5, schedule 1 [4] and [5], line 1 on page 4 to line 5 on page 5. Omit all words on those lines.
No. 4 Pages 6–8, schedule 1 [12], line 8 on page 6 to line 30 on page 8. Omit all words on those lines.
No. 5 Page 8, schedule 1 [12], lines 31–38. Omit all words on those lines. Insert instead:
63F Notice of termination may be given on ground that tenant offered alternative social housing premises
A landlord under a social housing tenancy agreement may give notice of termination of the agreement (the existing agreement) to the tenant on the grounds that:
(a) the landlord has offered to enter into a new social housing tenancy agreement with the tenant in respect of alternative premises to the premises the subject of the existing agreement, and
(b) the landlord has determined that the premises the subject of the existing agreement are to be redeveloped or renovated.
No. 6 Page 10, schedule 1 [12], lines 14–18. Omit all words on those lines.
No. 7 Page 12, schedule 1 [15], lines 1–28. Omit all words on those lines. Insert instead:
[15] Section 64 (2A) and (2B)
Insert after section 64 (2):
(2A) The Tribunal, on application under this section by a landlord under a social housing tenancy agreement who has given notice on the grounds referred to in section 63F, is to make an order terminating the agreement (the existing agreement) if it is satisfied:
(a) that the landlord has offered to enter into a new social housing tenancy agreement with the tenant in respect of alternative premises to the premises the subject of the existing agreement, and
(b) that the landlord has determined that the premises the subject of the existing agreement are to be redeveloped or renovated, and
(c) that alternative premises (which may or may not be the same as the alternative premises in connection with which the notice was given) are available for occupation by the tenant, and
(d) that, having considered the circumstances of the case, it is appropriate to do so.
(2B) In deciding whether or not to make an order under subsection (2A), the Tribunal is not to review the landlord's reasons for making the offer concerned.
No. 8 Page 13, schedule 1 [25], lines 27–30. Omit all words on those lines.
No. 9 Page 14, schedule 1 [27], lines 13–25. Omit all words on those lines.
No. 10 Pages 14 and 15, schedule 1 [27], line 31 on page 14 to line 2 on page 15. Omit all words on those lines.
Amendment No. 1 deletes new section 9A, which is headed "Extension of terms in standard form to existing social housing tenancy agreements". The bill allows the imposing of terms in new social housing agreements to all existing tenants. That is, it allows the terms of a contract already in existence to be changed independently of the wishes of one of the parties. The department could vary the terms of the social housing agreement for all tenants whenever it wanted. This is the implication of the bill as it stands. There is no limitation under the schedule to what could be required of tenants, what alterations could be made to the lease. People signing a lease, which is a contract, rely on the terms that they read before they sign as being the foundation of the contract. This provision allows those terms to be varied by the landlord. This would not be acceptable to other tenants—for example, to retail tenants who signed a five-year contract. The landlord could vary the terms of such a contract unilaterally. 19 October 2005 LEGISLATIVE COUNCIL 18845
This provision is unnecessary and would undermine the terms of the lease. The Tenants Union points out that with the introduction of fixed-term leases the department will have more opportunity to revise the leases as they will be renewed more frequently. At present the lease originally signed remains the lease in force under the continuing agreements that tenants are on. The same goes for tenants in the private rental market. The terms of the lease signed remain in force until a new lease is signed. The department already has stipulations in the Act to deal with antisocial behaviour. For example, the department already has the power to terminate an agreement if a tenant is carrying on an illegal activity or severely damaging premises.
The department is already able to invoke noise and nuisance provisions of the Act to take tenants to the tribunal: the department already has the power to impose antisocial behaviour agreements upon tenants, and it has all its policies, which regulate its operations. There is no justification for this provision, which is quite draconian, The Greens believe, as I have said, that there are already sufficient provisions in the Act to give the department the flexibility it requires without introducing into the Act a provision that would be offensive to all other sections of the community.
Greens amendment No. 2 deletes proposed section 14A, which deals with special provisions relating to social housing tenants. The provisions highlight the erosion of security of tenure for public housing tenants, because they create a series of fixed-term leases. The institution of such fixed-term leases will make it easier for tenants to be evicted—which I believe is one of the objects of the Reshaping Public Housing policy. Under the Residential Tenancy Act as it stands the department already has the power to terminate a lease where a tenant has broken the conditions of that lease. If a tenant seriously damages premises, does not declare income, fails to pay rent or causes noise or nuisance, the Department of Housing can issue a termination notice. If a tenant does not comply with the termination notice, the Department of Housing can then apply to the Consumer, Trader and Tenancy Tribunal for a termination and possession order.
If the tenant continues to refuse to move out, the sheriff is authorised to physically evict that tenant. To its credit, the department often tries many avenues with the tenant before resorting to action in the tribunal—for example, it gives tenants a chance to repay rental arrears—but I have been informed by tenancy workers that when it takes a tenant to the tribunal, the department sometimes loses the case because vital evidence may be lacking and the department's legal team is overworked. Obviously, the department sees this as a way to avoid the need to go before the tribunal.
Greens amendment No. 3 deletes proposed sections 19 and 19A. It will also delete proposed section and 19B, to which I will refer later. These proposed sections allow the Department of Housing to apply a water impost on tenants in respect of houses and units that are not equipped with water meters. This is a de facto rent increase, because the charge can be based on how much rent the tenant pays and how many people make up a particular household. In some instances the charge will far exceed the cost of water that is used—for example, if a tenant is working but lives in unmetered premises. In principle, the Greens support the levying of water charges on tenants and other measures to reduce water usage, but that is not what the Government will achieve with this provision. In fact it may have a counter-productive effect; it may incite people to use more water instead of less because the charge bears no relationship to actual water usage.
This charge does not even conform to the principle of user pays. The department is simply trying to claw back money from tenants, and the Greens believe that this is a particularly inequitable way of doing so. This is probably the most objectionable of any of the provisions of this bill, and tenants have told me on numerous occasions at many public meetings that they do not think it is fair. The Greens amendment will allow the status quo to be maintained, and that is that all tenants, private and public, who signed a lease after 1995 and have water meters installed on their premises can be charged for water usage. Under the current Act, the Department of Housing can legally charge tenants for water usage where there is a meter. This amendment will also delete proposed section 19B—payment of debts by social housing tenants. This provision is unnecessary because the department already has a policy in regard to tenants with debts incurred under a previous Department of Housing tenancy. The provision is superfluous.
Greens amendment No. 4 deletes proposed sections 63B, 63C, 63D and 63E—that is, all the parts of the Act dealing with the operation of the Government's Reshaping Public Housing policy. The department, under its Reshaping Public Housing policy, wants to limit eligibility for public Housing to those with ongoing need, where it defines need as "extreme need". Therefore, tenants on 80 per cent of the median income may not be eligible. Many people working part-time, casually or in low wage jobs would no longer be eligible. Sixty days is not long enough for someone who may have just entered or rejoined the labour force to have to move and adjust to the much more expensive private rental market. Western Australia's Housing Authority allows tenants six months' notice, and that would seem to me to be a far more satisfactory time frame. 18846 LEGISLATIVE COUNCIL 19 October 2005
Greens amendment No. 5 deals with proposed section 63F, which relates to notice of termination being given on the grounds that the tenant is offered alternative housing premises. It makes clear that where the department needs to redevelop and/or renovate its properties, a tenant must move to alternative social housing premises if requested to do so. The amendment adds a new subsection to limit the application of this provision to these circumstances. It merely circumscribes the conditions whereby a tenant can be required to move.
Greens amendment No. 6 deletes proposed section 63G (8), which relates to procedural fairness taken to have been observed. Last evening members debated the retrospective nature of the Luna Park legislation and this bill seeks to change retrospectively the terms of a lease. In addition, it seems the bill is now deeming that procedural fairness has been observed in a particular case. Surely that is why we have the Consumer, Trainer and Tenancy Tribunal and why we have a court system. It is extraordinary—and again it is very poor legal precedent—that the Government should arbitrarily declare that procedural fairness has been observed. I think that is inherently wrong, regardless of the issue that the bill might be dealing with.
Greens amendment No. 7 amends proposed section 64 (2A) and adds an additional provision to require the tribunal to be satisfied that the reason for termination of a tenancy is for redevelopment or renovation. The amendment deletes section 64 (2B), which is in line with the previous amendments to section 63, and adds a new subparagraph (d) to section 64 (2A) to include the following words, "and, in either case, that it is appropriate to do so in the circumstances of the case". The purpose of this amendment is to allow the tribunal to consider other matters in relation to terminations that fall under proposed sections 63B and 63F. It makes the provisions consistent with section 64 (2) (c) (ii) of the current Act, which gives the tribunal discretion in termination proceedings. The amendment reads the same as that subparagraph. Unchanged, this proposed section would limit the tribunal's discretion and prevent the review of social housing landlord's decisions.
Greens amendment No. 8 deletes proposed section 132 (4). This is the consistent with our previous amendments that would stop the department from being able to vary a tenants contract unilaterally. Greens amendment No. 9 deletes consequential amendments that flow from our proposed deletion of proposed sections 14A, 19A and 19B. Greens amendment No. 10 deletes the application of special provisions relating to terminations of social housing tenancy agreements to social housing tenancy agreements entered into in the past, that is, before the division commences. This is consistent with the other amendments designed to restrict implementation of the Government's reshaping public housing policies.
The Hon. JON JENKINS [5.12 p.m.]: I move:
No. 1 Page 4, schedule 1 [5]. Insert after line 26:
(6) The Energy and Water Ombudsman of NSW is to review any guidelines in force under this section as soon as possible after the period of 2 years from the date on which this section commences.
The most controversial aspect of the bill is the metering of water charges. My amendment seeks to impose upon the Government a duty to allow an independent assessor of the guidelines in force under the section to assess the metering of water charges. The amendment would give the Ombudsman the ability to assess the relative merit of metered contributions versus unmetered contributions. If there is an overt imbalance in the system, the Ombudsman will detect that imbalance and hopefully will feed the information to the Government, which will then adjust its fees accordingly.
The amendment would also allow for the assessment of water-saving devices or strategies that the Government might choose to implement during the test period. It would provide a good assessment of such water-saving devices with regard to both financial savings and resource savings. Because the Department of Housing is responsible for the maintenance of the properties—for example, with regard to the repair of tap washers and maintenance devices—the Ombudsman could also be involved in a system of either incentives or disincentives to maintain the properties, or perhaps an incentive scheme for owners of properties to receive rebates for water-saving devices.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.14 p.m.]: First I wish to speak to the Greens amendments. The Government, with its economic rationalist approach, wants to basically change the tenure regime of leases so the housing system will be like the mental health system: if there is someone on the waiting list who is more worthy than someone already in the system, the person who has the greatest need pushes the other person out. Effectively, there would be a hierarchy of deservedness, if you like. The bill does nothing to fix the problem of the shortage of housing; it merely says that the people in greatest need will get the housing and those who are in need but not as great a need as someone else will be pushed out. Importantly, the effect of 19 October 2005 LEGISLATIVE COUNCIL 18847 the Greens amendments is to prevent the variation in terms, which is all about rationing and is the essence of the bill. The important changes that the amendments make to the bill would allow the people in public housing who have been assessed and are in the system to get a fair go, and that is why I believe they should be supported.
The Hon. HENRY TSANG (Parliamentary Secretary) [5.15 p.m.]: The Government opposes the amendments proposed by the Greens but supports the Hon. Jon Jenkins's amendment. With regard to Greens amendment No. 1, the Government opposes the proposed amendment to section 9A. New section 9A is a necessary element of the new tenure regime of leases based on length of need. We must match need with housing, and do it consistently. We cannot have some tenants with lease conditions that are less rigorous than those of others, which would result without new section 9A. That would lead to nothing other than friction, and it would be unfair. For example, if some tenants are on 10-year leases conditions will change over that time. We must move with such changes. A situation where one tenant is allowed under his or her lease to keep a certain breed of companion animals while neighbours are not allowed would result in greater potential friction. The same can be said if different obligations on antisocial behaviour existed under different leases. Section 9A ensures consistency and uniformity, which is an important and necessary goal.
The Government also opposes Greens amendment No. 2, which relates to section 14A, which is a machinery provision that allows a social housing landlord to declare that a lease is subject to another fixed term. This is an important power to ensure that when a tenant's need continues he or she can be offered a new lease. The provision is critical to ensuring housing and that those in need align and can remain that way.
The Government supports the Hon. Jon Jenkins's amendment. It provides a creative and fair suggestion and would ensure that, after a period of two years, a review of the water charging regime is conducted to evaluate its implementation and assess its equitability. The Energy and Water Ombudsman of New South Wales would conduct this review. We believe that a two-year period of implementation prior to the Ombudsman conducting this review is also of importance. Any period less than this will simply not yield sufficient data to make a review worthwhile. A review conducted before this time would amount to a bureaucratic exercise and would not result in a useful outcome for those in public housing.
The Government opposes Greens amendment No. 3, which relates to section 19A. The amendment is based on a lack of appreciation of how water charging results in responsible usage of water. Our proposals to charge for water are based on responsibility and equity. Our proposals rely on usage principles and enshrine a strong user-pays approach. Social housing tenants already pay for other utilities, and water should be treated no differently. This is the norm in the private sector, and water charging will endue responsibility on numerous levels. In addition, the water usage charging regime will be matched by a planned Retrofit Program to install more than 20,000 water-saving devices in public housing. All new developments have such devices.
Importantly, the regime established is equitable. Metered tenants pay for exact usage. If a metered tenant has excessive water needs, he or she can apply to pay as an unmetered tenant—an important safety net. Unmetered tenants pay based on a proportion of their rent, which is, in turn, based on their household income. As more than 90 per cent of public housing tenants receive all or most of their income from Centrelink and these payments rely on household composition, this means the water charge will track onto household composition. This all means actual usage will be the main determinant of charging levels, even for unmetered tenants.
The charge levied on unmetered tenants is also discounted to take account of common area water usage. The rate will be 4.1 per cent of rent, resulting, for example, in a payment of just $2.40 a week for those on a single pension. The Government strongly endorses this regime because it will achieve responsibility and equitable charges. I want the Greens to be aware of this: It would cost more than $80 million to meter every dwelling. If spent this would result in an opportunity cost, in terms of new dwellings, of more than 650 public housing homes. That is hardly in line with the Greens' grand plan to see public housing expand to 15 per cent of all accommodation.
The Government opposes Greens amendment No. 3 in relation to proposed section 19B, Recovery of Debts. Section 19B is an important flexibility section and is required to ensure that the payment of prior tenancy debts proceeds under the new regime. There are likely to be cases where a person at the end of his or her fixed- term tenancy is in arrears but is making appropriate progress in paying them off. If this tenant is still eligible for public housing he or she will be granted a new fixed-term lease. The debt under the old tenancy agreement would then become a mere civil debt, which would be extremely difficult to recoup.
As the financial viability of an important resource such as public housing relies on fair contributions by both government and those utilising the system, it is important for government to be able to fairly recover costs 18848 LEGISLATIVE COUNCIL 19 October 2005 from the consumers. For this reason, proposed section 19B would provide for financial obligations to continue from one tenancy to another, provided that the tenant remains the same. This means that debts from one fixed- term tenancy could be carried over to a new fixed-term tenancy. This is important to ensure that tenants who are in arrears are obliged to pay back those arrears whilst minimising the threat of jeopardising their opportunity to receive a new fixed-term tenancy.
The Government opposes Greens amendment No. 4 in relation to proposed section 63B as it is based on a desire to continue the old, unsustainable foundations of public housing. It is based on life tenure. If it were accepted, the entire tenure of the Reshaping Public Housing strategy would be undermined. This bill is about housing those in need. Honourable members of the Greens have frequently referred in their contributions to those who are most in need, that is people suffering from a mental illness, those with a disability, the elderly, young homeless people and young families. Proposed section 63B operates to focus on those in need. If a social housing tenant has a need they will be housed. If that need continues they will continue to be housed.
The review process established by section 63B ensures a thorough assessment of need, and where that review results in a determination that the need for housing has passed, the social housing tenancy agreement will be terminated. If the need persists, the agreement is renewed. This review will occur only in the last six months of the lease, ensuring stability for the tenant. Proposed section 63D establishes a clear, no-cost and comprehensive appeal mechanism against any termination determination. Reasons for termination must be supplied in writing to the tenant, who has a right to appeal to local levels of the Department of Housing. The Minister stated in the other place that an additional appeal will also lie to the Housing Appeals Committee. At present, when the Housing Appeals Committee opposes a Department of Housing decision, in more than 95 per cent of such cases the department follows the committee's decision and overturns its own decision. This is an important tenant protection that should be strongly supported. It is the duty of a responsible government to focus on those in serious need of public housing. As the current legislation does not allow for social housing landlords to ask those no longer in need to move on following the review of a completed fixed-term tenancy, it is the Government's duty to respond to this.
The Government also opposes Greens amendment No. 4 in relation to proposed section 63C, Eligibility Criteria. That section of the bill provides a process for the assessment of the eligibility of a tenant under a social housing tenancy agreement to continue residing in the social housing premises concerned. The criteria for eligibility will be established by guidelines approved by the Minister for Housing. These criteria will be based squarely on need. The majority of social housing tenants have numerous cost-cutting and complex needs. The current regime does not factor this in, and proposed section 63C achieves this important reform. Furthermore, section 63C will allow the criteria for continued eligibility to vary from the criteria used for assessing entry. For example, this could be used to permit tenants with a moderate but secure income, say from casual wages, to remain in public housing for a further period while they become more established. The eligibility assessment may occur only in the last six months of a fixed-term tenancy.
Let us be clear, this bill contains in other areas several new protective provisions and creates new tenant rights that currently do not exist. Under proposed section 47A a social housing tenant will be able to apply for an order that rent is excessive. The Greens and others have highlighted the fact that the social housing sector faces large sustainability challenges. I draw attention to the reshaping reforms that are aimed squarely at the concerns expressed about ongoing sustainability. Proposed section 63C is a critical aspect of sustainability and deserves the support of the House.
The Government opposes Greens amendment No. 4 in relation to proposed section 63D, Review of Termination. Where need is assessed as having passed, a public housing tenancy will be terminated. Proposed section 63D establishes important and credible mechanisms in conjunction with ministerial commitments that make that section a sound tenant appeal and protection clause. Reasons for termination must be supplied in writing to the tenant and they have a right to be heard with appeals to local levels of the Department of Housing. The Minister stated in the other place that an additional appeal will also lie to the Housing Appeals Committee. At present, where the Housing Appeals Committee opposes a Department of Housing decision, in more than 95 per cent of such cases the department follows the committee's decision and overturns its own. This is an important tenant protection that should be strongly supported.
Similarly, the Government opposes the other part of Greens amendment No. 4 in relation to proposed section 63E, which establishes a fair and timely appeal mechanism. Sixty days or two months is a substantial appeal time frame. Any longer period would begin to undermine the regime of making sure that need can be matched to housing supply. Two 30-day periods show how such issues are dealt with in the private housing 19 October 2005 LEGISLATIVE COUNCIL 18849 sector—another important step in creating a sense of responsibility in social housing. At the same time I draw the attention of the House to proposed section 132, which removes the current exemption to the 60 days notice for market rent increases in public housing. This new protective clause, in support of fair treatment of Department of Housing tenants, is also based on a similar time frame. I commend proposed section 63E to the Committee.
The Government opposes Greens amendments Nos 5 and 6 relating to proposed sections 63F and 63G. As many honourable members will be aware, a number of our public housing estates require sustained attention or upgrading. In some cases substantial rebuilding is required to allow these upgrades to occur, and to do so the dwellings need to be vacated. Without amendment, the significant improvement of an entire estate could be jeopardised by a handful of tenants who refuse to vacate their premises, even after reasonable alternatives have been offered, and insist on their rights under a long fixed-term tenancy agreement. Proposed sections 63F and 63G provide a process that allows a landlord, under a social housing tenancy agreement, to give notice of termination of the agreement after offering the tenant a new tenancy agreement in respect of alternative premises.
This would allow the department to relocate a tenant to alternative accommodation if the premises are no longer suitable or are required for redevelopment or for some other reason. The Department of Housing would continue its current practice of seeking to relocate by negotiation, but this power is essential to ensure that important renewals are not delayed unnecessarily, which is of benefit to all tenants of public housing. These sections also address underoccupancy, a problem that can prevent allocation of suitably sized homes to struggling families. This amendment allows the department to insist that the smaller household move to a smaller home—even though it may have a long-term tenancy agreement for that property—to ensure that a family that requires the larger property is able to access it.
Any terminations under this ground would also be subject to procedural fairness requirements and ministerial guidelines. Again, under these guidelines, a second-tier appeal would be to the Housing Appeals Committee, further ensuring a useful and credible oversight function. Clearly, this is an equity-based program, allowing public housing to reach those most in need in a better and targeted manner. In addition, these sections will also provide a clear legislative basis for relocation as a measure for managing serious neighbourhood disputes, such as were experienced on the Gordon estate in west Dubbo, another very important step that I commend in the strongest terms. Finally, the Government opposes Greens amendment No. 7, which relates to proposed section 64. This provision gives the Consumer, Trade and Tenancy Tribunal a strong role in the review process established under the bill.
Ms SYLVIA HALE [5.34 p.m.]: I will not respond to the arguments put forward by the Hon. Henry Tsang on behalf of the Government. I believe the reasons for moving the various amendments have been well and truly canvassed in the bulk of my speech and also in my contribution addressing specific amendments. However, I am obliged to respond to what I am sure the Hon. Henry Tsang saw as the king hit. There is no doubt that the most contentious aspect of this bill is the proposal to impose a water charge on public housing tenants occupying houses that are not metered.
The Hon. Henry Tsang said that this proposal would cost $80 million and one could not possibly consider spending that amount of money on these dwellings. I find that a bit rich coming from a Government that proposes to spend $2 billion on a desalination plant that will not discourage the use of water and will incur enormous operating costs. Indeed, it will only contribute to a worsening of greenhouse gas emissions, which are bringing about water shortages in the first place. This Government has $2 billion to waste on a desalinisation plant, which virtually no-one in the community finds acceptable, yet the Hon. Henry Tsang finds the prospect of spending $80 million on installing meters impossible and unacceptable, even though it would help to discourage profligate water use and allow tenants to see that they have been charged an amount that is fair, appropriate, transparent and obvious. It would put them on a par with tenants in every other household dwelling in this country.
That is typical of the Government's attitude. It has the opportunity to solve the problem in the longer term, but instead it scratches around in a mean-minded, socially regressive manner to produce a bill that will compound the problems facing our society. This so-called water charge is not a charge for water usage, nor does it seek to discourage water usage; it is simply a rent hike. The Government has tried to dress it up and gloss over the fact that it is a charge for water usage when there is no relationship between the amount of water that will be used and the price the tenants will pay. The only relationship will be between income and the water charge. 18850 LEGISLATIVE COUNCIL 19 October 2005
The Greens wish to eliminate this provision because, if the Government were to spend $80 million on installing water meters, the cost would be spread over time and would serve the object that supposedly underlies this legislation, that is, it will allow tenants to monitor their water use and act appropriately. Moreover, the presence of water meters will allow the Government to actually recoup the costs of water used by tenants because the meters will demonstrably prove that tenants are paying for the amount of water they use. As it stands, no-one knows whether they are paying more or less than they would be obliged to pay if the water was metered. The installation of meters is an efficient, rational way to proceed. To put forward the trumped-up argument that it would cost $80 million merely highlights the Government's irrationality on these amendments and on so much of this bill.
The Hon. MELINDA PAVEY [5.38 p.m.]: The Opposition puts on record its position with respect to Outdoor Recreation Party amendment No. 1, which relates to the Energy and Water Ombudsman of New South Wales reviewing any guidelines in force under this section as soon as possible after the period of two years from the date on which the section commences. I note that the shadow Minister in the other place, when speaking to the bill yesterday, put that suggestion to the Minister, so obviously the Opposition supports that amendment. We requested a 12-month period, but two years is better than nothing.
I share the concern of Ms Sylvia Hale that by not having a meter in every home there is a lack of transparency. However, the Government's estimate of $80 million to put a meter in every public housing property is a high price to pay, especially if, as the Parliamentary Secretary said, that money could be used to build about 650 houses. I acknowledge the Government's hypocritical stance in terms of a desalination plant and the $2 billion cost to bottle electricity and burned coal. It is outrageous planning and an outrageous expenditure of public moneys when we are not in a position to be throwing money around, left, right and centre.
We realise that only so much money is available; we simply cannot go down to the bottom of the garden and pick up as much money as we want. On that basis, we support a review by the Energy and Water Ombudsman as per the Outdoor Recreation Party amendment. We acknowledge that putting meters in every public housing property in New South Wales would be extremely expensive. However, it is reasonable that Department of Housing tenants have a water charge that is more reflective of their water use, although it may not be their exact usage. It would give them a basis from which to work.
The Hon. HENRY TSANG (Parliamentary Secretary) [5.41 p.m.]: I am amazed by the Greens remarks. I am pleased that this country and this State will never be run by the Greens, because they would rather spend $80 million on installing water meters than provide 650 homes for those most in need. The proposal is hardly progressive. The Government would rather deliver 650 new homes for those in need in our society. Obviously, water charges will be based on Centrelink's requirements in terms of household composition. The composition of a household will determine the water usage level. Centrelink links income to water usage, which is a fair system. I remind the Greens that water meters will be installed in all new developments. I commend the Government's recommendation to the Committee.
Reverend the Hon. FRED NILE [5.42 p.m.]: The Christian Democratic Party supports the Outdoor Recreation Party amendment for the review process. We believe that it is a good amendment. We do not support the Greens amendments. We agree with the Government that it is much better to use the $80 million on housing than on installing meters, when there is a formula in place that will give, as far as is humanly possible, a fair water charge for each public housing tenant.
Greens Amendments Nos 1 to 10 negatived.
Outdoor Recreation Party amendment agreed to.
Schedule 1 as amended agreed to.
Ms SYLVIA HALE [5.44 p.m.], by leave: I move Greens amendments Nos 11 to 14 in globo:
No. 11 Page 16, schedule 2.1, lines 3–8. Omit all words on those lines.
No. 12 Page 16, schedule 2.2, lines 9–15. Omit all words on those lines.
No. 13 Page 16, schedule 2.3, lines 16–21. Omit all words on those lines.
No. 14 Page 16, schedule 2.4, lines 22–25. Omit all words on those lines. 19 October 2005 LEGISLATIVE COUNCIL 18851
The object of these amendments is to delete the proposed changes to the objects of the Aboriginal Housing Act 1998 and the Housing Act 2001. If the proposed changes in the bill proceed, they will have the effect of further restricting the provision of social housing as an entitlement under article 11 of the United Nations Covenant on Economic, Social and Cultural Rights, which deals with access to housing. According to the bill, the revised object of these two Acts will be to ensure that the available supply of housing under the Acts is shared equitably by those most in need. That sounds perfectly fine on the surface. However, if one thinks about it, it is asking those most in need to share a scarce resource among themselves, which inevitably means that some people will miss out.
The bill as it stands takes us one step further away from the language of entitlement or the language of right to housing. Therefore, the Greens oppose these changes to the objects of the two Acts. Once upon a time the Labor Party had a prospect of providing social justice to many in the community. It is perfectly obvious from this bill, and indeed from other bills that have come before the Parliament, that the Labor Party has abysmally abandoned that objective, and in so doing has alienated itself from its core source of support that has sustained it for so long. If it wants to become the Liberal Party it should say so unashamedly, rather than pretend to have any attachment whatever to the original ideas that inspired so many people in the labour movement.
The Hon. HENRY TSANG (Parliamentary Secretary) [5.46 p.m.]: The Government rejects Greens amendments Nos 11 to 14. The provisions bring the Aboriginal Housing Office [AHO] and the Housing Act into line with this bill. The AHO board supports these provisions, which will result in equity and need being included across additional sectors of social housing. The AHO has discussed these measures and supports them. Again, the Greens lack understanding of sustainable housing.
Amendments negatived.
Schedule 2 agreed to.
Title agreed to.
Bill reported from Committee with amendments and passed through remaining stages.
STATE EMERGENCY AND RESCUE MANAGEMENT AMENDMENT BILL
Second Reading
Debate resumed from 18 October 2005.
The Hon. RICK COLLESS [5.50 p.m.]: The Coalition will not oppose the State Emergency and Rescue Management Amendment Bill. We see some quite sensible provisions in the bill, particularly in relation to the sale and misuse of emergency uniforms and insignias. We think it is most appropriate to create an offence of manufacturing and selling insignias of emergency service organisations and an offence of using or displaying insignias of emergency service organisations, particularly when it is with the intent to deceive. In this day and age of counter-terrorism activities it is important that the only people who wear emergency service organisation uniforms and insignias are those authorised to wear them.
The bill allows for the appointment of deputy emergency operation controllers. That is required for the normal day-to-day management of emergency service organisations. To wear a uniform is a right that is earned. It is not something that is taken lightly by emergency service personnel. People have to apply for that right. They have to be accepted in order to wear that uniform and they have to work and study hard to earn the right to wear the uniform. It is important that that right be preserved and held in some esteem.
When these people earn their stripes, as they say, when they graduate and are eligible to wear uniforms, they invariably wear the uniforms and insignias with pride. We have all seen the tremendous jobs the State Emergency Service people, the Rural Fire Service people, the police and others do when they don their uniforms in times of need and put their safety and lives at risk for the benefit of the wider community. It is important that those people are respected once they have earned the right to wear those uniforms.
The bill has been touted—the Parliamentary Secretary made a point of this in his speech in another place—as being legislation introduced to combat terrorism. I think that is drawing a long bow. The bill is unlikely to deter terrorists as such, but it may remove the risk that they may attempt to impersonate a uniformed 18852 LEGISLATIVE COUNCIL 19 October 2005 officer. The Coalition does not have any concerns with the bill and will not be opposing it. I commend the bill to the House.
Mr IAN COHEN [5.55 p.m.]: On behalf of the Greens I speak to the State Emergency and Rescue Management Amendment Bill. I acknowledge from the debate in the other place and also from comments that have been made here that the bill takes a reasonable position to ensure that uniforms are worn only by those who have received the appropriate training and are qualified to wear them. I have had a second take on this legislation, as it is wrapped up in the rhetoric of terrorism and the perceived threats that seem to be running the agendas of the major political operatives in this State and worldwide. Official uniforms are important in our community. Any abuse of them is an affront to the trust people place in those wearing a uniform, whether they be police, ambulance officers, Rural Fire Service or other government service personnel. It is inappropriate for people to impersonate them for the purpose of access for simple robbery or to intimidate people in any way.
Last year the official uniforms and insignia of New South Wales Ambulance Service officers were offered for sale on the Internet site eBay. That raises concerns for everyone in the community. If such items are accessible through eBay or by any other means, it could allow people with malicious intent to impersonate a range of emergency service personnel, and that is not appropriate. I understand the offence attracts a penalty of 50 penalty points—that is, a $5,500 fine. It is important that people who impersonate State Emergency Service personnel or police or ambulance authorities are appropriately dealt with.
These days an unofficial market in uniforms and insignia would not be seen as appropriate. In the circumstances I do not think it is an unreasonable move. From time to time we hear of people impersonating authorities with malicious intent, and that should be resisted. However, I hope that the effect of these legislative provisions does not transfer to people who may be wearing old uniforms or such like as part of a fashion statement. At times young people do wear army uniforms or policemen's hats and similar items of clothing, but they do it obviously in a spirit of rebellion and with no malicious intent. I would like to think that that harmless behaviour would be seen differently. But legislation like this bill can be abused by those in authority against people who might be acting in a relatively benign—cheeky, if you like—manner. As the intent of the bill is to protect the community against those who may seek to dress in an inappropriate and deceitful matter, the Greens do not object to the legislation.
Reverend the Hon. FRED NILE [6.00 p.m.]: The Christian Democratic Party is pleased to support the State Emergency and Rescue Management Amendment Bill, which will amend the principal Act to create two new offences: the unauthorised manufacture, sale or hire of the insignia or uniform of an emergency services organisation; and the use or display of an emergency services uniform or insignia with the intention to deceive, that is, to impersonate an officer of an emergency service organisation. Currently one of the largest anti-terrorist exercises in Australia's history is being conducted. It involves thousands of security and emergency officers, mainly in Victoria, and is a precaution against terrorist attacks during the Commonwealth Games. We must do everything possible to keep our community safe. There have been concerns that access to official uniforms of the New South Wales fire, ambulance and volunteer emergency services could enable terrorists to easily impersonate a range of emergency services personnel, which could assist them to plan or carry out terrorist activities.
Currently there is great respect for people wearing those uniforms, and a terrorist wearing such a uniform would be able to enter sensitive areas whereas a civilian would be immediately stopped. The bill may appear to be only a minor step but I believe it is very important. It is not much good having a great system that operates after a terrorist attack. The Government has a responsibility to ensure that it puts in place every possible measure to prevent a successful terrorist attack. That is why the Federal Government, Prime Minister John Howard and the Premiers of all States have agreed to the new draft Federal legislation, which will be uniform across Australia. Even though it may seem Draconian to some, it is essential in the climate in which we live. I note that the bill provides for a maximum fine of $5,500. This could be a deterrent to individuals who are not involved in terrorism but unknowingly facilitate terrorist acts. There is also provision for specific exemptions to apply where the person's conduct is authorised or they can establish that the conduct is for public entertainment or they have a reasonable excuse such as being a genuine collector. For those reasons the Christian Democratic Party supports the bill.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.03 p.m.]: The fact that the bill is justified as being a measure against the threat of terrorism is something of a worry. As I have said countless times in this House, the reason we have a terrorist threat is because our foreign policy is so bad and belligerent. Because of that appalling foreign policy we are told that we have to totally adjust our thinking, trash our civil rights, and 19 October 2005 LEGISLATIVE COUNCIL 18853 rack up the penalties on almost any activity. We do not have a problem with stopping the improper use of emergency and rescue service uniforms and insignia: laws are already in place to prevent that. Of course, it is illegal to use a ruse to commit a robbery or other felony. It is part of the crime and, presumably, an exacerbating feature in sentencing considerations.
It is always claimed that these measures are all about terrorism. This Government has knuckled under to John Howard's insane antiterrorism Act. It is necessary because of his appalling foreign policy, and because he took Australia into a war without even bothering to consult Federal Parliament. When Peter Andren moved a motion to debate the issue in the House, both major parties did not even want to debate it. We are racking up the penalties for something that otherwise might seem relatively trivial on the basis of a threat of terrorism.
The bill covers the New South Wales Ambulance Service, New South Wales Fire Brigades, the New South Wales Fire Service, the State Emergency Service, the Volunteer Rescue Association, the Royal Volunteer Coastal Patrol, the Australian Volunteer Coast Guard, and the police. We do not particularly oppose the bill; we simply make the point that the bill is necessary because we have a crazy foreign policy. This Government is increasing penalties for actions that it claims might possibly be involved in terrorism or might stop some degree of terrorism because of the climate in which we live. Indeed, they are the exact words that Reverend the Hon. Fred Nile of the Christian Democratic Party used. We are in this climate of fear because some very silly people who kowtow to George Bush, who is advised by some very silly people, are actually trashing our civil rights and making our society less safe. They are also squandering billions of dollars on security measures that may or may not protect us, even as our civil rights go out backwards. That point needs to be made.
We will not oppose the bill, as we usually do not oppose such bills, but we are saying that the paradigm that makes it necessary is the absurdity of our foreign policy. We are harming humanity and our society and wasting money that we could put towards worthy causes. That is what the two parties that are supposedly running this sick duopoly that is Australia's political system are doing. The Australian Democrats believe that a more sensible look at the whole matter is necessary.
The Hon. HENRY TSANG (Parliamentary Secretary) [6.08 p.m.], in reply: I thank honourable members for their contributions and support, and I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
BUSINESS OF THE HOUSE
Postponement of Business
Government Business Order of the Day No. 3 postponed on motion by the Hon. Henry Tsang.
CIVIL LIABILITY AMENDMENT (OFFENDER DAMAGES TRUST FUND) BILL
Second Reading
The Hon. HENRY TSANG (Parliamentary Secretary) [6.10 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
This bill introduces a Government initiative that is the first of its kind in Australia—a scheme to quarantine awards of damages and compensation to offenders into a trust fund to enable victims to lodge claims against them. Under the scheme, when an offender is awarded damages or compensation from a government department, the offender's personal injury victims will get the first opportunity to access the damages. The issue of inmate litigation remains topical. Notwithstanding the limitations on offender damages imposed by part 2A of the Civil Liability Act 2002, introduced by the Civil Liability (Offender Damages) Act 2004, the community is rightly outraged when offenders receive large amounts of compensation for injuries received in custody, particularly when the amount awarded is compared with the victims compensation available to their victims. 18854 LEGISLATIVE COUNCIL 19 October 2005
The community perceives such offenders to be using the law for their own purposes when it suits them, but disrespecting the law and the community in the commission of their crimes. Under this bill, damages awarded to offenders will be held in a trust fund. The offender's victims will be notified, and will have six months in which to make a claim against the offender in a civil court if they wish. All victims have a right to sue an offender for civil damages; they have always had such a right. In most cases this right is illusory since an offender rarely has sufficient assets with which to pay any damages awarded. It is all the more galling for a victim to forego the right to sue an offender on this reasoning and then to see the offender paid a large amount of compensation, even more so when the offender can spend or hide that compensation before the victim can bring a civil case against the offender. If the limitation period for an intentional tort has expired, the victim has no recourse at all.
The scheme to be introduced by this bill will redress that balance from the offender's favour to the victim's favour. The scheme will facilitate a process whereby victims may, if they wish, take their own civil action against the offender, at their own expense, in the knowledge that quarantined funds exist to satisfy claims. The scheme will be facilitative, not administrative. The Government will not be involved in any such legal action, nor will any new bureaucracy be established to determine litigation or administer the scheme. The normal qualification criteria will apply to victim litigants seeking legal aid. This is not a scheme to redress all wrongs done by offenders to their victims. It is a scheme to redress, as far as possible, serious wrongs committed by particular offenders against victims in light of the changed financial standing of the offenders.
I now turn to the detail of the bill. Schedule 1 [1] inserts a new division 6 into part 2A of the Civil Liability Act 2002. Proposed section 26K contains definitions, including definitions of "offender", "offender damages", "victim claims" and "victim trust fund". The definitions, together with part 7 of schedule 1, apply the scheme to an offender, as defined in existing section 26A, who receives an award of personal injury damages from a protected defendant, also defined in section 26A, whether those proceedings were conducted under Part 2A or otherwise and whether a court entered a verdict and damages or the parties reached a settlement that was entered as a judgment. Proposed section 26L requires offender damages to be held in trust in a Victim Trust Fund for victims of the offender. There is an exception to cover amounts that a protected defendant is required to pay to some other person under an Act of the Commonwealth or the State, such as the Health Insurance Commission, the Australian Taxation Office, Centrelink, or other payments which, if unpaid, are enforceable against the protected defendant under statute.
Proposed section 26M provides that a Victim Trust Fund is available to satisfy claims for damages in respect of death or personal injury suffered by victims of offences committed by the offender. To be eligible to be satisfied from a Victim Trust Fund, a victim claim must be made within an eligibility period of six months after the award date of the offender's damages and must be notified to the protected defendant. The court in which the victim claim is made must also be notified that the claim is made as a claim that is eligible to be satisfied from the Victim Trust Fund. Proposed section 26N requires the protected defendant responsible for a Victim Trust Fund to give notice about the fund to persons who appear to be entitled to make a victim claim against the offender.
Proposed section 26O provides for the protected defendant to provide a victim with other information about the Victim Trust Fund and other victim claims against an offender. Proposed section 26P allows proceedings to be taken on a victim claim after the limitation period for the taking of those proceedings, but only during the six-month period after offender damages are awarded. An award of damages that results from such a claim may be satisfied only from the offender damages held in a Victim Trust Fund. Proposed section 26Q allows a court that awards damages on a victim claim that is eligible to be satisfied from a Victim Trust Fund to order the whole or part of the damages to be satisfied from the fund. In making such an order, a court must inform itself about, and allow for the making of, similar orders in respect of other claims that are eligible to be satisfied from the Victim Trust Fund.
Proposed section 26R requires payment to the offender of any surplus remaining in a Victim Trust Fund after payment of all victim claims ordered to be paid from the fund and administrative expenses of the fund. Proposed section 26S provides for victim trust funds to be held and invested by the Public Trustee. The section also provides for a protected defendant to enter into arrangements with the Public Trustee to exercise functions on behalf of the protected defendant. Proposed section 26T provides for legal costs awarded against a protected defendant in connection with an award of offender damages to not form part of a Victim Trust Fund. Proposed section 26U fixes a scale of maximum legal costs for legal services provided to a plaintiff on a victim claim that is eligible to be satisfied from a Victim Trust Fund. This provision ensures that the money actually goes to victims and not lawyers. The cap is justified because in most cases there should be little argument over liability, only quantum.
Proposed section 26V confers protection from liability for acts and omissions in good faith for the purpose of executing the proposed division. Proposed section 26W provides that the proposed division overrides proposed division 2 of part 7, which deals with offender damages awarded to persons who are not guilty of what would otherwise be an offence because of mental illness. Schedule 1, items [2] and [3] enact savings and transitional provisions for the proposed amendments. The amendments will apply prospectively to all awards of offender damages, including awards in respect of proceedings commenced and causes of action that arose before the commencement of the amendments, even though other provisions of part 2A have a more limited application to damages awarded and proceedings commenced before the commencement of that part.
In practice, the scheme will operate as follows. First, an award of offender damages will be frozen in an Offender Trust Fund for six months to enable victims to commence civil actions against the offender. The relevant protected defendant is to notify victims reasonably known to it within 28 days of the award date. Secondly, if no civil actions by victims against the offender have been started and notified to the relevant protected defendant in the six months freeze period, the money in the Offender Trust Fund is to be paid to the offender, together with interest. Thirdly, if one or more civil actions are commenced against the offender, the Offender Trust Fund will continue until the resolution of all victim claims. Fourthly, where there is a single victim claim the court hearing the claim may award damages to the victim from the Victim Trust Fund. If the damages amount exceeds the amount of the trust fund the victim will be awarded total damages and the court will order payment of moneys to the extent of the trust fund amount. The victim will be entitled to enforce any shortfall as a judgment debt under normal civil enforcement procedures except if the claim would have been statute barred but for the scheme, in which case the victim will be entitled only to be awarded damages in the amount of the Victim Trust Fund.
Fifthly, where there are multiple victims suing the offender the scheme contains a mechanism to ensure that the first successful litigant does not exhaust the trust fund, leaving little or nothing for the other victims. Here each court hearing a victim claim is to 19 October 2005 LEGISLATIVE COUNCIL 18855
award total damages against an offender and specify how much of that total damages is to be awarded against the Victim Trust Fund, having regard to the existence of other claims and the amounts likely to be awarded in respect of those claims. The remainder of the damages will be enforceable against the other assets of the offender under normal civil enforcement procedures except if a claim would have been statute barred but for the scheme, in which case the victim will be entitled to receive only damages from the Victim Trust Fund notwithstanding that a larger amount of total damages would have been payable if the claim had not been otherwise statute barred.
Sixthly, in order for victims to be able to consider whether or not it is worthwhile to pursue a victim claim against the offender, victims may seek information from the protected defendant of any victim claims notified to the protected defendant. Victims and their legal practitioners may then consult other claimants in considering whether or not to pursue their own claim. It may not be worthwhile to pursue their claim in light of their injury, another claimant's injury, the amount in the Victim Trust Fund and the potential legal costs of bringing a claim. The bill contains provisions to ensure that information may be provided by a protected defendant notwithstanding a non-disclosure clause in a settlement agreement. That information so provided is not to be provided to any person for any other purpose.
Victims who have received victims compensation will not be allowed to double dip. There is existing provision under the Victims Support and Rehabilitation Act 1996 for a victim to be subrogated to the Victims Compensation Fund for the amount of victim compensation paid from any award of damages received. Protected defendants will be required to notify the Director of the Victims Compensation Fund of any victim claims notified to it. The remaining amendments in the bill are procedural in nature. I commend the bill to the House.
The Hon. DAVID CLARKE [6.10 p.m.]: This bill is not opposed by the Opposition. Its purpose is to amend the Civil Liability Act 2002 so that damages awarded against the Department of Corrective Services, and other public sector defendants, to an offender for injuries suffered while in custody will be available to satisfy claims for damages suffered by victims of the offender. The bill provides that any damages awarded to an offender for injuries sustained while in custody are to be held in a trust fund to satisfy a claim for damages from a victim of the offender. There is an exception to cover amounts that a protected defendant is required under an Act of the State or Commonwealth to pay to some other person. Surplus funds remaining after any victim claims are satisfied will be paid to the offender.
The bill allows a victim claim to be made within six months after offender damages are awarded, despite the claim being barred because of the expiry of the limitation period for the making of the claim, but only for the purpose of the claim being satisfied from those offender damages. There is a requirement that the protected defendant responsible for a victim trust fund give notice about the fund to persons who appear to be entitled to make a victim claim against the offender. When a court makes an order awarding damages from a victim trust fund to a victim it must inform itself and allow for the making of similar awards in respect of other claims eligible to be satisfied from the same trust fund.
Provision is made for victim trust funds to be held and invested by the Public Trustee. Legal costs awarded against a protected defendant in connection with an award of offender damages are not to form part of a victim trust fund. Whilst the Opposition has concerns about aspects of some details of the bill, it supports the underlying concept that offenders who cause damage or injury to a victim should be liable to meet such claims from any award that the offender has obtained as a result of a claim for injury brought against the Department of Corrective Services, or other public sector body, arising during the period that the offender is in custody.
The public considers it to be a scandal that offenders can obtain financial compensation for injuries sustained in custody and yet their victims may receive far less, if indeed anything at all, for more serious injury at the hands of offenders. We currently have in this State a victim compensation scheme pursuant to which victims of crime can seek some recompense for their injuries and damage suffered. The State Government then in effect pays to claimants any award assessed by the Victims Compensation Tribunal and then seeks restitution from the offender. The problem is that, for a variety of reasons, including the economic circumstances of the offender and even a failure of the State Government to more vigorously pursue action against offenders to recompense the Government, only a small percentage of payout awards to victims under the scheme is recovered from offenders.
In addition, damages that may be awarded under the scheme are capped so that the victim will normally receive substantially less than would have been the case had civil proceedings been pursued against the offender and the offender had the means to meet a verdict against him or her. The advantage of what is proposed under the bill before us is that the victim will have access to awards given to offenders in custody, and the taxpayer will not have to fund such awards. The shadow attorney-general, Mr Andrew Tink, expressed some concerns about the bill, in particular concerns about multiple victim claims on one trust fund, and how the court will take into account such other existing claims and ensure that proportionality is safeguarded.
Mr Tink also outlined concerns in the other place and referred to questions raised by the New South Wales Law Society regarding the effective operation of the proposed arrangements. However, taking these 18856 LEGISLATIVE COUNCIL 19 October 2005 concerns into account, and Government assurances that the scheme will achieve its overall object, the Opposition does not oppose this bill.
Reverend the Hon. FRED NILE [6.15 p.m.]: The Christian Democratic Party does not oppose the Civil Liability Amendment (Offender Damages Trust Fund) Bill. The object of the bill is to amend the Civil Liability Act 2002 to require that damages awarded against a government department for injuries suffered by an offender in custody are to be held in trust and used to satisfy a claim for damages for death or personal injury suffered by a victim of an offence committed by the offender. Any surplus remaining after the victim claims are satisfied will be paid to the offender. The Christian Democratic Party is strongly in favour of this bill. I note, however, that it restricts a claim for damages to death or personal injury. There may be some other legitimate grounds on which a victim of a crime should be able to exercise their rights under this legislation.
The terminology in the bill, whether intended by the Government or not, appears to restrict the operation of the bill to cases in which personal injury has been suffered. The Government may give consideration at some future time to widening the classification of personal injury. Similar bills have been passed in other jurisdictions. I understand that the New Zealand Parliament passed a Prisoner and Victim's Claims Bill by a narrow majority of two votes. The main argument against the bill in the New Zealand Parliament was to the effect that offenders should not be able to benefit from compensation at any point or in any way, and that there should not be a trust established to hold compensation awarded to offenders.
I sympathise with that view. I am suspicious about some claims for compensation where a prisoner is bashed and injured whilst in prison, as to whether it might involve a conspiracy with other prisoners so that the offender can legitimately claim compensation. Such an offender may be party to and even organise the bashing, complain to the authorities, and then seek and be awarded compensation. There could be a strong argument that there should not be compensation for prisoners abusing the existing arrangement. In Scotland a prisoner was awarded £2,400 after a judge ruled that his role in emptying the chemical toilets every morning violated his human rights. He submitted a claim and was awarded that large sum of money. I believe this is an area where the Government should review the eligibility criteria of prisoners to seek compensation. There must be a far more efficient way of investigating those claims to ensure that they do not involve a conspiracy.
I note that if no civil actions by victims against the offender have been commenced and notified to the relevant protected defendant in the six-months freeze period the money in the trust fund is to be paid to the offender, together with interest. In view of that fact I reiterate that six months is insufficient time in which claims must be initiated. For financial and emotional reasons victims may need more than six months to initiate a claim. I believe that is a strong point. It takes time for knowledge of such claims and the awarding of compensation to offenders to become known to the victim. I urge the Government at some time in the future to consider extending that six-months period so that victims are not discriminated against simply because they did not know about the possibility of claims. Do any of us in this House know what compensation has been awarded to New South Wales prisoners? How does one come to know, unless it is in a front-page newspaper story?
Where multiple victims are suing the offender, the scheme contains a mechanism to ensure that the first successful litigant does not exhaust the trust fund. Each court hearing a claim is to award total damages against an offender and specify how much of the total damages is to be awarded against the victim trust fund in light of the existence of other claims and the amounts likely to be awarded. The remainder will be enforceable against the other assets of the offender under normal civil enforcement procedures.
There is also a provision for claims that would otherwise be statute barred to be brought under the scheme. These claims may only be made against the victim trust fund and cannot be enforced against the other assets of the defendant. I have already referred to the situation in New Zealand and Scotland. I note with interest that last year in the United Kingdom a rapist won £7 million in a national lottery: he was one of three winners to share £21 million in the Lotto Extra jackpot. The prisoner was at the end of a life sentence for attempted rape and was on release from open prison when he bought his winning ticket.
Organisations representing the interests of rape victims came out saying that the prisoner should fund rehabilitation programs for rapists. Under Home Office guidelines, prisoners on temporary release from gaol are allowed to play the lottery and can claim a winning prize. However, the Home Office said that the prisoner's access to the money would be restricted while he was in custody—in other words, the money would be put into a trust and would not be paid out to the victims.
The scheme established by the bill will not be retrospective in its operation; it will commence upon assent of the Act. People who have received compensation as victims will not be allowed to claim under the 19 October 2005 LEGISLATIVE COUNCIL 18857 victim's rehabilitation regime and this legislation. An existing provision under the Victims Support and Rehabilitation Act 1996 provides for a victim's subrogation under the Victims Compensation Fund for the amount of victim compensation paid from any award of damages received. For those reasons the Christian Democratic Party supports the bill.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.21 p.m.]: Frankly, I am horrified by this bill; I can only think it is absolutely Kafkaesque. It arises from the decision of the Court of Appeal in Bujdoso v The State of New South Wales. On 16 February 1990 the plaintiff was sentenced to a minimum term of three years and four months imprisonment after pleading guilty to various charges of homosexual intercourse with a minor. At the time the victim was aged between 14 and 15 years. On the evening of 21 September 1991 at approximately 11.00 p.m. a number of assailants wearing balaclavas forced entry into the plaintiff's cell and assaulted him with iron bars, attacking his head, arms, back, torso and legs. He suffered a fractured skull, broken left arm, and injuries to his right knee and back. He was left with cognitive deficiencies and long-term orthopaedic problems.
The prison authorities had prior knowledge that the plaintiff was at risk of attack. For substantial periods within every two hours there was no officer on duty at the prison work release units where the plaintiff was held, and the prisoners were left entirely unguarded. The District Court at first instance and the Court of Appeal accepted that the lock on the plaintiff's cell door was inadequate to prevent forced access by the fellow prisoners who assaulted him. The lock was described by the Court of Appeal as "flimsy and out of date". A sustained campaign was then run in the Daily Telegraph. The proposition advanced by the Daily Telegraph in that campaign is summarised in the following words in its editorial of 24 September 2004:
By all means it is unacceptable that prisoners should attack other inmates and the culprits should have been punished appropriately.
But compensation for paedophiles? Most people would reason that those who commit such violent crimes can take their chances in prison.
The Government's High Court appeal was heard in Canberra on Wednesday 5 October 2005, and judgement has been reserved. I quote from a letter written to me by T D Kelly & Co, Solicitors:
Most members of the community would no doubt agree that whatever the offence committed in the past by a prisoner, when the State has deprived him of his liberty it has a duty to take reasonable steps to ensure his physical safety while in detention.
This Bill will clearly have the effect of discouraging prison inmates from ever taking proceedings against the State for a failure to carry out that duty.
The consequence of this will be that certain prisoners can be bashed with impunity and the prison authorities are unlikely ever to be called to account in the Courts for their failure to protect such inmates.
It seems that there is an incentive for people in prison to bash other prisoners. If someone is bashed, and indeed the victim successfully sues for damages—which, for a prisoner in New South Wales, is not an easy thing to do—presumably if the bashing is so severe that it causes permanent injury, whatever the circumstances, at any time in the future a doctor can state that the victim has long-term injuries. It is a matter of great concern that there is a financial incentive for a prisoner to bash another prisoner, and that that action may result in the victim of the bashing being awarded damages. It seems that we are drawing a distinction between a prisoner who is bashed—who, of course, can never be a victim!—and a person who is injured, deliberately or otherwise, during the commission of a crime for which a person is sentenced.
Theoretically, under the rule of law, if a person is sentenced to prison for a period that is what society deems to be his or her sentence. The sentence is for that person to be put in gaol for the term determined by the judge. The sentence is not for the person to be put in a cell where somebody can bash him or her at any time, resulting in money being awarded to the person bashed. This provision is almost beyond belief. It amounts to an extraordinary trampling on the civil rights of prisoners. I know that the Government is innovative in finding ways of getting together moneys to do what needs to be done—and certainly giving compensation to victims through the Victims Compensation Fund is something that needs to be done—but the Government's notion is too simplistic. It is not all about money and squeezing as much as possible out of innovative schemes.
A tax on diving for grey nurse sharks is being debated at the moment. This innovative Government is short of cash because it refuses to borrow for its major infrastructure projects; it tries to fund everything from current revenue, and it therefore has a perpetual cash flow crisis as its infrastructure falls apart. But this bill is just another innovative way of getting money for the Victims Compensation Fund. I have a lot of sympathy for 18858 LEGISLATIVE COUNCIL 19 October 2005 victims, and I do not want anyone to accuse me of not having sympathy for victims. But I believe that restitution for victims should be built into a restorative justice model.
I do not believe that I could be accused of being unsympathetic to victims. I have treated in my medical practice people who have been victims of armed hold-ups. In one such case I provided treatment to two young women who were working in a hotel in south Burwood that was held up by a gang a little after closing time, at 11.30 p.m. The gang bashed down the door and held up the two women, whose job it was to take the money out of the poker machines and count it. One of the women was a young university student doing an unpleasant evening job to pay for her studies. The other was from middle Europe. She was in her early thirties and had a bad experience with regard to men. This hold-up engendered a huge amount of anxiety in her: she could not tolerate being in dark places, she was frightened, and she was scared of aggression in men.
Both women had relationships at the time, which subsequently fell apart. They had both begged their employer to engage security guards or install stronger doors at the hotel, on the basis that there had been a number of armed hold-ups in the area and they were handling roughly $30,000 a night. All their requests were turned down: their employer was quite unsympathetic to their cause. It took a couple of years for them to get their lives back on track. The workers compensation and employment framework was not conducive to rehabilitation in their case. Fortunately for them, they were covered by workers compensation and they received some payment for their psychological treatment, which was ongoing and certainly necessary.
So in a sense they did better than most victims. But most victims do not have any sort of restitution plan with the perpetrator, if that is possible. I am not saying that is so in all cases but it is in some cases. The counselling is niggardly, the victims accident compensation fund is underfunded, and this needs to be addressed. But to create an incentive for people to be bashed in prison in order to top up the victims compensation fund seems to be a step far beyond what is reasonable. Members who have heard me speak in this Chamber recently would know that I was very enthusiastic about the establishment of the Legislation Review Committee. Indeed, I wanted a more extensive review of legislation than is currently being carried out by that committee. The committee stated:
The committee is of the view that having regard to the limitations in the bill, it does not unduly trespass on an offender's right to be free from discrimination.
It sounds an extraordinary conclusion to me. It would seem to me that this bill provides an incentive for prisoners to bash other prisoners without providing any protection to people in prison who are likely to suffer from prison bashings. It is as if this legislation is imposing an additional penalty on people sentenced to gaol by saying, "You shall get the sentence of the court and you shall get whatever anarchic sentence is imposed on you in the cells of New South Wales prisons." This very bad bill sets a very dangerous precedent and it has to be opposed. It is not simply a matter of members being sympathetic to victims—and certainly I am very sympathetic to victims. We have to look at the bigger picture. This bill is appalling and I oppose it.
Debate adjourned on motion by Ms Lee Rhiannon.
[The Deputy-President (The Hon. Christine Robertson) left the chair at 6.32 p.m. The House resumed at 8.00 p.m.]
GAMING MACHINES AMENDMENT BILL
In Committee
Clauses 1 to 4 agreed to.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.04 p.m.]: I move Australian Democrats amendment No. 1:
No. 1 Page 4, schedule 1. Insert after line 28:
[7] Section 45 Regulation of promotional prizes and player reward schemes
Insert after section 45 (5):
(5A) A hotelier or registered club is not authorised to charge a fee:
(a) for persons to participate in any such player reward scheme, or
(b) for providing a player activity statement to any person. 19 October 2005 LEGISLATIVE COUNCIL 18859
This amendment will discourage hoteliers from charging a fee for persons to participate in a reward scheme or for providing a player activity statement. Such a fee is just another charge to people, which we would like to discourage. Effectively, there would be a charge on what would otherwise be a reward scheme, with the hotelier charging an administration fee, thus adding to those incentives the enthusiasm with which a hotelier or club owner might want to have such incentive schemes, which of course entices people to gamble further. I commend the amendment.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [8.06 p.m.]: The Government does not support this amendment. In response to the Independent Pricing and Regulatory Tribunal [IPART] report on responsible gambling the Minister for Gaming and Racing announced that the Government is committed to pop-up measures on gaming machines and that research on appropriate messaging will be conducted as part of the signage review to be undertaken by the New South Wales Government.
The Hon. MELINDA PAVEY [8.07 p.m.]: Whilst the Opposition appreciates the Australian Democrats resolve to stop people from gambling, we believe that people have the right to gamble if they so choose. We believe also that in that regard appropriate controls are in place. The Opposition does not support the amendment.
Amendment negatived.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.08 p.m.]: I move Australian Democrats amendment No. 2:
No. 2 Page 4, schedule 1. Insert before line 29:
[7] Section 45A
Insert after section 45:
45A Gaming machines must be located in non-smoking areas of hotels and clubs
(1) A hotelier or registered club must not keep an approved gaming machine that is available to be operated unless the gaming machine is located in a non-smoking area of the hotel or club premises.
Maximum penalty: 100 penalty units.
(2) A person must not smoke in a non-smoking area of a hotel or premises of a registered club in which approved gaming machines are located.
Maximum penalty: 5 penalty units.
(3) In this section:
non-smoking area of a hotel or the premises of a registered club means a part of the hotel or premises that is, by the use of signs, designated by the hotelier or club as an area in which smoking is not permitted.
This amendment proposes that gaming machines must be located in non-smoking areas of hotels and clubs. There is a good deal of research evidence to suggest that people who take risks in one area of their lives tend to take them in others. Smokers tend to gamble more and gamblers tend to smoke more. The most smoke-filled room in any pub or club is the gaming room. Therefore, the idea is that if people wish to stop gambling or if they have a gambling problem the best thing they can do is withdraw from the gambling area and, in a sense, take a breath, look at the situation and see how much money they have lost. In other words, they need to take a break from the machines.
When the blood nicotine level in a smoker starts to fall he or she will suffer withdrawal symptoms. That is perhaps part of the pleasure of smoking: when smokers feel stressed because their nicotine level falls they have a cigarette to increase their nicotine level and they then feel less stressed. Consequently, they claim that smoking relieves stress.
Non-smokers will become very stressed if they have a cigarette because of the poison they ingest, but as a smoker's nicotine level falls he or she feels the need to smoke. If smokers have to leave a gaming machine area to go outside for a smoke they might be surprised to see that it is a nice day, realise how slim their wallet has become and stop gambling. Anti-gambling groups are aware of the connection between smoking and 18860 LEGISLATIVE COUNCIL 19 October 2005 gambling, and smoking groups are aware that smoking and gambling go together. A gambling environment is bad for the health of smokers and bad for their wallets.
The amendment proposes that gaming machines be located in a non-smoking area so that smokers will have to leave the area to have a cigarette. This measure will help problem gamblers and will improve the health of smokers, who will no longer smoke while gambling. It is a win-win situation for gamblers. Indeed, this will result in a lower incidence of disease, and this will be a win for the State and Federal governments, which have to pick up the tab for ruined lives. This amendment is progressive. It should be noted that highly qualified psychologists have produced a report for the pubs and clubs industry advising the industry how it can deal with the loss of revenue caused by people leaving gaming areas to smoke. Poker machine operators expect a drop in revenue because of this and have strategies in place, which were suggested by the report, to keep people gambling. This report was leaked to some health authorities.
The amendment is designed to benefit gamblers and if the industry believes in "responsible gaming"— although I believe that is a slogan rather than the reality—it would support the amendment. The industry likes to suggest that people gamble, not because they are addicted but because they choose to gamble and if they have $10, for instance, they may decide to continue gambling, and, further, if they gamble sensibly, they can make the choice to stop gambling. This sound amendment will help gamblers and I commend it to the Committee.
Reverend the Hon. FRED NILE [8.12 p.m.]: The Christian Democratic Party supports this practical amendment, which will not put any pressure on clubs because already they have set up areas, almost like verandas or balconies on the periphery of buildings, for smokers. The areas are not suitable to accommodate poker machines as they have little security: they are merely for smokers. This is a good amendment and we support it.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [8.13 p.m.]: The Government does not support the amendment. Smoking policy rests with the health portfolio. The Government has legislation in place that will see smoking banned in enclosed areas within licensed premises by 2007.
The Hon. MELINDA PAVEY [8.13 p.m.]: The Opposition is not in a position to support the amendment. Although I understand the pure intentions of the Hon. Dr Arthur Chesterfield-Evans, with respect to non-smoking areas for gambling I make the point that people have the right to make choices in life, and if people make a choice to smoke and gamble they do so of their own free will. The Opposition does not support the amendment.
Amendment negatived.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.14 p.m.], by leave: I move Australian Democrat amendments Nos 3 and 4 in globo:
No. 3 Page 4, schedule 1. Insert after line 35:
[8] Section 47 Responsible conduct in relation to gaming machines
Insert after section 47 (2) (h):
(i) requiring warnings about gambling to be displayed on the screens of approved gaming machines at regular intervals.
No. 4 Page 5, schedule 1. Insert after line 10:
[9] Section 49A
Insert after section 49:
49A Requirement to display on-screen gambling warning messages
(1) A hotelier or registered club must ensure that gambling warning messages are, in accordance with the regulations, displayed on the screen of each approved gaming machine that is kept in the hotel or on the club premises.
Maximum penalty: 100 penalty units. 19 October 2005 LEGISLATIVE COUNCIL 18861
(2) The gambling warning messages required to be displayed under subsection (1) are to include such other gambling harm minimisation information as may be prescribed by the regulations for the purposes of this section.
(3) Without limiting subsection (1), the regulations may make provision with respect to the content, frequency and duration of the gambling warning messages and other information required to be displayed on approved gaming machines.
(4) The gambling warning messages required to be displayed on approved gaming machines are, to such extent as is practicable, to be developed by independent experts and researchers in the area of problem gambling.
(5) A hotelier or registered club does not commit an offence under this section until after the period of 2 years immediately following the commencement of this section.
Amendment No. 3 seeks to make it obligatory for on-screen warnings to be displayed at regular intervals on gaming machines. Amendment No. 4 seeks to impose an obligation on the hotel or registered club to ensure that such messages are displayed and, further, that harm minimisation information is displayed. The regulations must make provision for those warnings. Indeed, for many years it was a requirement that cigarette packets carry a warning that "Smoking is a health hazard". But after some time that became ineffective and, as a result, rotating warnings were placed on packets for greater impact. Subsections (3) and (4) of proposed section 49A allow for those messages to be developed and tested by independent experts, and subsection (5) provides a phase-in period of two years. These sensible amendments seek to provide warnings on screen, where they are needed, and include a generous phase-in period.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [8.17 p.m.]: The Government does not support these amendments. The Government is committed to pop-up messages on gaming machines. The Minister for Gaming and Racing has already announced this in his response to the report of the Independent Pricing and Regulatory Tribunal [IPART] on responsible gambling. Research and appropriate messaging will be conducted as part of the signage review to be undertaken by the Government, as outlined as part of the Government's response to the IPART report.
Reverend the Hon. FRED NILE [8.18 p.m.]: The Christian Democratic Party supports these amendments. This concept has been raised in debates over many years and we have now reached the point where action should be taken to provide on-screen messages to warn gamblers and to try to break the hypnotic effect that causes gamblers to lose track of time and how much money they have put into the machines. These are positive amendments designed to assist gamblers.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.18 p.m.]: I am very disappointed that although the Government is effectively supporting a concept I have espoused for some time and which has now been embraced by IPART, the Minister is only paying lip-service to that concept. I wonder why he will not include it in the legislation, rather than claim it as an independent Government initiative, which presumably will require legislation. I ask three questions of the Minister: first, why will he not include the concept in the legislation given that effectively he agrees with it; second, will he put it in legislation; and, third, when?
Amendments negatived.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.19 p.m.]: I move:
No. 1 Page 5, schedule 1. Insert after line 10:
[9] Section 49A
Insert after section 49:
49A Prohibition on gaming machines in outdoor areas
(1) A hotelier or registered club must not install a gaming machine, or permit a gaming machine to be used, in an outdoor area of the hotel or club.
Maximum penalty: 100 penalty units.
(2) In this section, outdoor area of a hotel or club means any part of the hotel or club that is not enclosed (within the meaning of the Smoke-free Environment Act 2000). 18862 LEGISLATIVE COUNCIL 19 October 2005
It is crunch time for the Government and the Opposition. I have made considerable representations to both the Government and the Opposition. This amendment would prohibit gaming machines being located in outdoor areas. It might be noted that currently there are no gaming machines in outdoor areas. The amendment states that a hotelier or registered club must not install a gaming machine or permit a gaming machine to be used in an outdoor area of the hotel or club. In this section an "outdoor area of a hotel or club" means any part of the hotel or club that is not enclosed within the meaning of the Smoke-free Environment Act. As I said on the amendment which would have required gaming machines to be in smoke-free areas, currently all gaming machines are indoors, generally in the smoking areas of hotels, because when the nicotine level of smokers goes down they tend to leave their machines and that lessens poker machine turnover.
The Government has delayed the implementation of smoke-free pubs. Pubs in Ireland went smoke free in three months. It has taken more than two years for this Government to introduce smoke-free pubs and clubs. Indeed, pubs will not finally be smoke free as defined until July 2007. When other countries can introduce smoke-free pubs and clubs within a couple of months, one might ask why this Government has provided a phase-in period of 2½ years. The answer is that pubs and clubs will have 2½ years in which to provide outdoor spaces for smokers. Pubs and clubs would like an outdoor space to be defined as 25 per cent of the combined area of the ceiling and the walls being open. In other words, 75 per cent is enclosed and 25 per cent is unenclosed. This allows for linked umbrellas and sections of wall and will be deficient. Basically, it will be a covered area that is considered to be an outdoor area. Effectively, it is an indoor area with plenty of ventilation or some ventilation depending on the winds—a large area in the beer garden or another area where people can smoke.
This is about the hotels, pubs and clubs retaining their status as a mecca for smokers. That will have immense public health effects. Instead of pubs and clubs going smoke free they will still have smoking areas. It is disgraceful that the Government deliberately provided a phase-in period of 2½ years, despite smoking having been shown to cause lung cancer some 55 years ago, in November 1950. The Government has given the pubs and clubs another 2½ years in which to develop outdoor smoking areas. The psychologist's report on how to keep people gambling when hotels and clubs go smoke free shows that the object is to keep the smokers and gambling machines together. As I said, at the moment gambling machines are located in rooms that are likely to be smoking areas or at least partially smoking areas so that smokers can stay close to the gambling machines.
In America—it is always entrepreneurial and keen to give all people the maximum opportunity to lose their money—gambling machine manufacturers are making an outdoor poker machine that can go out in the weather and still take people's money. Of course, areas that are 75 per cent enclosed could easily have poker machines in them. At the moment they do not because it is unnecessary. So under this bill the Government is not taking anything from the hotels and clubs that they have at present. Effectively, this assumes that pubs and clubs will move their poker machines into the outdoor areas once they are constructed in order to keep smokers smoking and gamblers gambling, and keeping the two things together.
This is my assertion of what will happen. This amendment is my preventive mechanism to try to stop gambling and smoking going together basically forever. That is not the current situation because poker machines are not located outside, and the Government can stop them from being put outside in the future. I put it to the Government that each time a haven is provided for smokers, whether it be in discotheques where pretty girls can hand out cigarettes or specially designed outdoor or indoor areas for gambling machines, all are forms of nidus for smoking and for the ill health caused by smoking to continue. There is a lot of evidence that the Government pays a fortune through the hospital system for diseases caused by smoking. Of course, all the money now goes to Canberra and does not come back.
This amendment provides the Government with a golden opportunity. I have given the Government plenty of notice and explained the situation. I hope that the Government will finally stand up to the hotels. When I put the amendment about existing smoking areas the Government did not have the courage to say that gambling machines should go in non-smoking areas, because presumably that would have caused a loss in gambling revenue between now and 2007. Basically, my amendment refers to the situation after 2007, when pubs and clubs may move poker machines into artificial outdoor areas in order to maximise revenue from smokers who cannot stop smoking or gambling. So I commend the amendment to the Government. I believe it is important in terms of lessening gambling and the harm caused by tobacco, including the harm to smokers, the unpleasantness caused to non-smokers and the damage to the health system in the costs generated. I commend this important amendment to the Committee.
Reverend the Hon. FRED NILE [8.27 p.m.]: The Christian Democratic Party supports the amendment moved by the Hon. Dr Arthur Chesterfield-Evans. Again, we believe that a prohibition on gaming machines in outdoor areas is a positive step. It is anticipated that there may be problems in the future, and that is why it is important to include this amendment in the bill. 19 October 2005 LEGISLATIVE COUNCIL 18863
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [8.28 p.m.]: The Minister for Gaming and Racing advises that he is not currently aware of any approved gaming machines in New South Wales suitable for use in unenclosed areas. Further, the current regulations would make it difficult for a hotel to place its gaming room in such a location. The Minister for Gaming and Racing understands the concern expressed by the Hon. Dr Arthur Chesterfield-Evans, and wants to ensure that an effective smoking ban in enclosed areas is introduced. The Minister has given an undertaking to continue to monitor the issue raised. He advises that should this issue arise in the future, based on a real situation, he will consider the issue in conjunction with his colleague the Minister for Health.
Currently the Minister for Gaming and Racing has the authority to prepare a regulation that could prescribe the location of gaming machines in a venue should it become warranted. However, the Government is not prepared to act on hypotheticals at this time. If it becomes a problem in the future then action can and will be taken.
The Hon. MELINDA PAVEY [8.29 p.m.]: For the very reasons the Minister highlighted, that there is no outside gambling area, the Opposition is disinclined to support the Australian Democrats amendment.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.29 p.m.]: The whole point of the amendment is that this problem has not arisen. Once pubs go totally smoke-free there will be a huge incentive for clubs and pubs to move their poker machines into the smoking areas. Once they have done so they will be reluctant to take them back. Currently there is no reason why they should. Of course, the Government will have to get them to do that when it is in danger of suffering a loss of revenue. They will fight hard and the Minister will have to show a lot more courage than this Government has ever shown to the clubs and pubs to do anything about it. I am extremely disappointed with this response from the Government. It is pathetic. The fact that the poor old Opposition could not make a decision is also pathetic.
Question—That the amendment be agreed to—put.
The Committee divided.
Ayes, 7
Mr Breen Mr Cohen Ms Hale Mr Jenkins Ms Rhiannon Tellers, Dr Chesterfield-Evans Reverend Nile
Noes, 16
Ms Burnswoods Ms Griffin Mr Tsang Mr Clarke Mr Kelly Mr West Mr Colless Ms Parker Ms Cusack Mrs Pavey Tellers, Mr Donnelly Ms Robertson Mr Harwin Mrs Forsythe Ms Sharpe Mr Primrose
Question resolved in the negative.
Amendment negatived.
Ms LEE RHIANNON [8.37 p.m.]: I move Greens amendment No. 1:
Page 10, schedule 1. Insert after line 19:
[25] Section 204A
Insert after section 204:
204A Director-General required to publish information about hotel and club gaming machine profits
(1) In relation to each financial year ending 30 June, the Director-General is required to publish and make publicly available, within 3 months of the end of that financial year: 18864 LEGISLATIVE COUNCIL 19 October 2005
(a) a complete list of registered clubs ranked in accordance with total gaming machine profits for clubs during that financial year, and
(b) a complete list of hotels ranked in accordance with total gaming machine profits for hotels during that financial year.
(2) Each such list must include the following information in respect of each venue specified in the list:
(a) the name and location of the venue,
(b) the total number of gaming machines kept in the venue,
(c) the total profits made by the venue from those gaming machines during that year,
(d) the tax payable by the venue under the Gaming Machine Tax Act 2001 for that year,
(e) the venue's ranking on the basis of its profits per gaming machine,
(f) the venue's ranking for the previous financial year and an indication of its positional change.
(3) This section has effect despite any other provision of this Act or any other law.
The Greens amendment would require the director general, three months after the end of each financial year, to publish and make publicly available a list of registered clubs and hotels ranked in accordance with total gaming machine profits for that year. The list would include the name and location of the venue, the number of gaming machines kept, the profits made by the venue from those gaming machines, the tax payable, the venue's ranking on the basis of its profits per gaming machine, the venue's ranking for the previous financial year and an indication of its positional change.
We believe this information should be free of charge and accessible to all. It should not cost $1,870 a quarter, as it currently does. The Greens are concerned to make this requirement a legislative one because one cannot rely on the Government to keep providing this information. Honourable members know how hard it is to get information from this Government. Time and again we hear the adjective "secretive" to describe this Government. In the late 1990s the Government stopped publicly releasing quarterly and annual financial data about levels of gaming in the State's registered clubs and hotels. It was only through a court action that the Daily Telegraph won against the Government in the Administrative Decisions Tribunal, disputing the department's refusal to release information after a freedom of information request was made by the newspaper, that the Government has again been publishing this information.
But it comes at a very high cost. This amendment will ensure that the information will always be provided and the Government will not hide it away again. These financial statistics, published on a locational basis, have been an important source of information for gambling researchers trying to unravel problem gambling and looking for solutions to these social ills.
For example, we know that in New South Wales gaming machines are more densely located in lower- income areas. Given that the primary impact of gambling is lost money, people with relatively low household income—and, by implication, relatively less disposable income—are much less able to afford to gamble. Data analysis can help paint this picture, but only if researchers have access to the data. In the Parliamentary Library I looked at some of the huge tomes once regularly put out by the department. The data allowed the public and the media to examine how much was being made through gambling by what pubs and clubs and in what geographical area. So the amendment is not that unusual, and it should not be hard for the Government and Opposition to accept.
Refusing the community easy access to this material is designed to avoid scrutiny of the industry. The systematic and free release of this kind of financial data is supported by organisations such as the Council of Social Service of New South Wales and the Gambling Impact Society. The society points out that 38 per cent of all income from gaming machines is drawn from people who have significant problems. It says that the public needs to be better informed on these issues and that more research is needed. The society also suggests that limiting the information in any way is quite contrary to notions of transparency. The Greens would agree.
The argument put by the Government and the Opposition that information published about an unusually high amount of money that a pub or club hauls in on a particular night puts hoteliers in danger from a robbery is pretty lame. This information was for many years put out by the Department of Gaming and Racing. So that really does not rate as an excuse. The sky did not fall in when this information was made available previously. And since that time the ability of pubs to secure their buildings from theft has become much more 19 October 2005 LEGISLATIVE COUNCIL 18865 sophisticated. If these venues are willing to reap the great monetary rewards from poker machines they should also be able to bear the costs of protecting the earnings. I commend the amendment to the Committee.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.43 p.m.]: I support the amendment. It is extremely important that data on poker machine losses—I call them poker machine losses because they are losses from the community to the owners of the poker machines—should be available to those who want to research what the losses are in the communities in which they occur, the demographics thereof, so that they can work out programs to help gamblers. The information is already collected: the turnovers, the tax levels and so on are all collected. I presume that the information is collected electronically, and it would be no trouble to have that information formatted to a common level. I have no doubt that it already is. So it is merely a question of writing a program to put the data into an available form.
Huge amounts of money and research are spent on how to get people to gamble more. There are advertisements all over the place, on television and so on pushing the idea that gambling is glamorous and people are going to win, which of course is a fantasy. Much of the research on gambling is funded by the gambling industry, which means that it has a lot of control over what is done, how effectively, and what information and what conclusions. It is like the tobacco industry funding tobacco research. It is much better if researchers can work independent of the industry. The least the industry can do is to contribute the figures from which the research comes. That would not fund the research: researchers need to live, for starters. They need computer programs and so on to do their work. The least the industry could do is provide the figures, the raw material, for the research that they are doing. They have to get the material from the Australian Bureau of Statistics, cross correlate and so on and then try to work out what can be done. But this is a first step, and it ought to be mandatory. I support the amendment and urge the Committee to do the same.
Reverend the Hon. FRED NILE [8.45 p.m.]: The Christian Democratic Party supports the amendment, which will require the director general to publish information about hotel and club gaming machine profits. There was some reticence about providing the information. The Daily Telegraph got the information under freedom of information provisions but I think it should be generally available. In a recent speech on a gaming bill I made the point that venues in the western suburbs made large profits from gaming machines. That is the sort of information that we need and that the Government needs if it is serious about introducing harm prevention programs to reduce the impact of gambling, especially on those addicted to it. It is very important information that should be made available, and it will be if the amendment is carried.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [8.46 p.m.]: The Government opposes the amendment. In the recent Government response to the Independent Pricing and Regulatory Tribunal report a clear direction was to have ongoing dialogue to create a policy framework. The department has already commenced the policy process with working groups with community and industry representation formed to consider policies such as gaming machine design and self-exclusion. The Government is committed to this consultative approach. The Minister in the other place indicated a need to provide greater information to the community on gambling. That is accepted by the Government. The concept is reflected in this bill. Details should not be developed here in isolation to the development by government of a policy framework on responsible gambling. This will be undertaken in consultation with the community, government agencies and the proposed Responsible Gambling Fund trustees. Matters such as provision of information can be discussed in this context and will continue as part of the Government's continued participation in the Ministerial Council on Gaming. As I said, the Government opposes the amendment.
The Hon. MELINDA PAVEY [8.47 p.m.]: The Opposition believes that there are sufficient legislative requirements for clubs to—
The Hon. Dr Arthur Chesterfield-Evans: You are just going with the Government, aren't you?
The Hon. MELINDA PAVEY: No, I am going with the small clubs that do not have the time and the manpower to find out what every poker machine is earning in every club, whether it is the Bellingen Golf Club or the Dorrigo RSL club or the Cooma RSL club. They do not have the manpower and resources to fulfil the requirements of the amendment, and we do not support it.
Ms LEE RHIANNON [8.48 p.m.]: The comments of the Hon. Melinda Pavey, apart from the way they were delivered, were rather offensive and, again, totally off the mark. This information is available. All we are talking about is whether it is publicly released. Let us remember that the bulk of it has been released. 18866 LEGISLATIVE COUNCIL 19 October 2005
Speakers from the major parties are compromised, as their parties are compromised in this whole debate, because of the massive donations that their parties have taken.
The Hon. Patricia Forsythe: Oh, get off!
The Hon. Dr Arthur Chesterfield-Evans: Hear! Hear!
The Hon. Melinda Pavey: I was not compromised.
The Hon. Catherine Cusack: You are not offensive at all, are you!
Ms LEE RHIANNON: I acknowledge the interjections.
The Hon. Rick Colless: Which ones do you acknowledge? Do you acknowledge the one from the Hon. Dr Arthur Chesterfield-Evans?
Ms LEE RHIANNON: Yes, I acknowledge the interjections from this side and the other side.
The Hon. Rick Colless: Where do you get your donations from?
Ms LEE RHIANNON: From very hard work.
The Hon. Rick Colless: Are you going to acknowledge that?
Ms LEE RHIANNON: Yes. It is all on my web site. We are very proud of it. You can see it there. What we certainly do not do is get all the money from Star City, Tattersall's, Crown Ltd and Aristocrat Technologies Australia Pty Ltd. Let me just go through some of them. It is not surprising that those opposite are squawking tonight! It is not merely because it is after 8.00 p.m. The Federal Labor Party from 1998 to 2004 took $197,300 from the gaming industry.
The Hon. Rick Colless: Where do your preferences go?
Ms LEE RHIANNON: You have got such a hang-up. Then we have New South Wales Labor—
The Hon. Don Harwin: If you are really serious, if you are not being a complete hypocrite then surely the only thing you can do is exhaust at the next elections and not give preferences. Otherwise you are a complete hypocrite, aren't you?
Ms LEE RHIANNON: You know that we do a great deal of exhausting. New South Wales Labor— $394,917.
Mr Ian Cohen: It is a very convincing argument she has put forward!
Ms LEE RHIANNON: I acknowledge the comments of my colleague. The $394,917 was for Labor New South Wales over the same time period. Then we move on to the Federal Liberals. There are just a few here, which is interesting. There is a huge amount—way up there with Labor—but they are not picking up the small donations. They are getting the big donations, with eight separate donations—Tabcorp Holdings, nearly all Tabcorp actually. Only TAB Limited, Tabcorp Holdings and Tattersalls Holdings come in at $332,000, about $70,000 behind New South Wales Labor.
The Hon. Rick Colless: What odds did they get on that?
Ms LEE RHIANNON: I am not a gambling man, actually, so I will have to leave that to you, Mr Colless. Then we have the Liberals in New South Wales for the same period, 1998 to 2004—$239,546—and about $60,000 coming in from Star City. I imagine they would have been disappointed with that, but every dollar counts when you are running these big election campaigns! The Nationals, do you want to hear what you got? But did you get it? Did you actually use it? At a Federal level you got $31,000 and The Nationals New South Wales got $50,500 from Arrowfield Group, Emirates Park and Star City. Those dollars are the reason the amendments that have been proposed tonight will not be accepted. These political parties are deeply compromised. You do not know the suffering you are causing. 19 October 2005 LEGISLATIVE COUNCIL 18867
The Hon. PATRICIA FORSYTHE [8.52 p.m.]: Ms Lee Rhiannon posed a question when she began her contribution by saying, "We certainly do not get all our money from" and then listed off a number of organisations. I would therefore pose a question to her: Where do you get your money from? Where does it come from? You said, "We certainly do not get all our money from" and you listed some sources. There is an implication that you get some of your money from gambling sources. They were your own words; I have just repeated them to you. Since you have made the issue of donations to political parties the basis upon which you are making a judgement tonight, I am merely asking you: Where do you get your money from?
Ms LEE RHIANNON [8.53 p.m.]: The implication that the Greens take money from the gaming sector is way off the mark. If the honourable member looks at the Australian Electoral Commission web site she will—
The Hon. Melinda Pavey: So you get none from gambling?
Ms LEE RHIANNON: No, we get none from gambling, so that is way off the mark.
The Hon. Tony Kelly: You actually said, "We don't get all our money from there", indicating that some of it came from there but not all.
The Hon. Rick Colless: Where do you get it from? Tell us where you get it from.
Ms LEE RHIANNON: We get it basically from hard work.
The Hon. Melinda Pavey: Three months of chook raffles!
Ms LEE RHIANNON: Yes, because people get out there and do the hard yards. Again, your agitation reflects your embarrassment. Our donations are on the Australian Electoral Commission's web site and they are also collated on the democracy4sale web site, so you can come into this House and read out our donations. We are very proud of them. We are the ones who highlight our donations, not like the system you run. It is your party in Federal Parliament at the moment that is trying to do over the whole electoral system. The whole system of donations will be rorted so that companies can give a donation—
The Hon. Don Harwin: What nonsense! It is the same level it is in Canada, the same level it is in New Zealand, and the same level it is in half of western Europe.
Ms LEE RHIANNON: That is not so at all. The system you want to bring in seeks to raise the bar to $10,000 so that companies can give those donations and nobody will know. That is where you are heading.
The Hon. Tony Kelly: Point of Order: Madam Chair, I do not think this really has much to do with the clause.
Amendment negatived.
Schedule 1 agreed to.
Schedule 2 agreed to.
Title agreed to.
Bill reported from Committee without amendment and passed through remaining stages.
CIVIL LIABILITY AMENDMENT (OFFENDER DAMAGES TRUST FUND) BILL
Second Reading
Debate resumed from an earlier hour.
Ms LEE RHIANNON [8.57 p.m.]: To be a victim of crime can be a terrible experience. In extreme cases it can be an experience that damages the life of the victim permanently. As would all members of this House, I extend my sympathy to the victims of crime. Parliaments must strike a balance between the interests and needs of the victims of crime, sound legal principles and practice, and the needs of the offender. It can be a 18868 LEGISLATIVE COUNCIL 19 October 2005 tricky issue to strike the appropriate balance, and politicians who pretend that it is easy are doomed to make poor laws. Unfortunately, the bill is quite unbalanced and poorly thought through—as has been so much of the crime-related legislation introduced by the Government. Aspects of the bill are unfair, unwieldy and impractical. I will move amendments in Committee to address the Greens concerns.
It is not surprising that this legislation is unbalanced, for once again the Government is responding to a Daily Telegraph campaign. This particular campaign was launched in reaction to the 2004 Court Of Appeal case of Bujdoso v the State of New South Wales. Lawyers for the prisoner in that case, T. D. Kelly and Company, have written to me outlining their concerns with the bill and how it came about. The offender was in prison, having been sentenced to a minimum term of three years and four months imprisonment after pleading guilty to several charges of homosexual intercourse with a minor. The Hon. Dr Arthur Chesterfield-Evans has detailed how this prisoner was attacked and suffered serious injuries. Prison authorities had prior actual knowledge that the prisoner was at risk of attack, but, for substantial periods, within every two hours, there was no officer on duty at the prison work release unit where the prisoner was held, leaving prisoners entirely unguarded.
The District Court at first instance and the Court of Appeal accepted that the lock on the plaintiff's cell door was inadequate to prevent forced access by the fellow prisoners who assaulted him. The lock was described by the Court of Appeal as "flimsy and out of date". The Court of Appeal judged that the New South Wales Government had breached the duty of care it owed to the prisoner and that the prisoner had the right to pursue damages in the District Court. This duty is said to include taking reasonable care to prevent harm stemming from the unlawful activities of other prisoners.
The lawyers for the prisoner explained that "No doubt pushed by a sustained campaign in the Daily Telegraph the … Government appealed to the High Court." The appeal was heard in the High Court on 5 October this year, but judgment has been reserved. The Daily Telegraph campaign was based around its outrage that a paedophile should be able to sue the Government for compensation for a breach of duty of care— even if it involved a brutal bashing. Sadly, we know that if the Daily Telegraph is outraged, more than likely the Government has a knee-jerk reaction. The Daily Telegraph roared in an editorial on 24 September 2004:
By all means it is unacceptable that prisoners should attack other inmates and the culprits should have been punished appropriately.
But compensation for paedophiles? Most people would reason that those who commit such vile crimes can take their chances in prison. In his second reading speech the Minister, while taking a slightly more conciliatory tone than the Daily Telegraph, commenced his speech as follows:
The community is rightly outraged when offenders receive large amounts of compensation for injuries received in custody … the community perceives such offenders to be using the law for their own purposes when it suits them, but disrespecting the law and the community in the commission of their crimes.
For the Government, the "community" here would appear to be the Daily Telegraph. I must say I find this comment from the Minister quite sick. He is effectively negating the duty of care of the Department of Corrective Services. Let us remember that prisoners are punished by their loss of liberty. In this State we no longer have stocks, we no longer have capital punishment, we are no longer a penal colony. When prisoners go to gaol, that is their punishment. They have not been sentenced to get bashed, but that is what this legislation effectively delivers. I sometimes wonder whether members of this house understand that the punishment is going to gaol, not all these other add-ons that they are able to squeeze in these days. The offender's lawyers make the following well-considered comment:
Most members of the community would no doubt agree th at whatever the offences committed in the past by a prisoner, when the State has deprived [a prisoner] of his [or her] liberty it has a duty to take reasonable steps to ensure [the prisoner's] physical safety while in detention.
This Bill would clearly have the effect of discouraging prison inmates from ever taking proceedings against the government for a failure to carry out that duty.
The consequences of this will be that prisoners can be bashed with impunity and prison authorities are unlikely ever to be called to account in the Courts for their failure to protect such inmates.
The bill, drawn up by the Government against the backdrop of this Daily Telegraph campaign, is another example of the Government undermining a just legal system. It may be useful to remember that victim compensation moneys are already repayable by the offender from damages, provided the recovery claim is bought by the Government in time. I will explain in Committee the Greens' reservations about the bill and the amendments that seek to overcome the real deficiencies that exist in these proposed new laws. Our amendments 19 October 2005 LEGISLATIVE COUNCIL 18869 attempt to strike a far better balance between the interests and needs of victims and the interests and needs of offenders than the Government's bill in its present form provides.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [9.04 p.m.], in reply: I thank honourable members who spoke to this bill. At this point I wish to illustrate the success of the Government's measures to restrict offender litigation. In the second reading speech to the Civil Liability Amendment (Offender Damages) Bill 2004, delivered on 18 March 2004, the former Minister for Juvenile Justice, Minister for Western Sydney and Minister Assisting the Minister for Infrastructure and Planning, the Hon. Diane Beamer, noted the effects, to that time, of the Civil Liability Act 2002 on litigation in New South Wales. Ms Beamer reported a decrease in District Court civil matters of 62 per cent in two years and a decrease of "pending" cases of 61 per cent— primarily as a result of the introduction of the Civil Liability Act 2002.
The experience of the Department of Corrective Services since March 2004 shows the effect of Part 2A of the Civil Liability Act 2002, which was inserted by the Civil Liability Amendment (Offender Damages) Act 2004. On 5 May 2004, in debate on the Civil Liability Amendment (Offender Damages) Bill 2004, the former Minister for Justice, the Hon. John Hatzistergos, advised the Legislative Council:
In the 12 months before the announcement of the Civil Liability Act 2002, that is, between 1 April 2001 and 1 April 2002, the Department of Corrective Services received 32 claims from inmates and offenders … In the two years since the Civil Liability Act was passed—between 22 April 2002 and 17 March 2004—there has been an average yearly drop in claims of about 22 per cent and an average yearly drop in negligence claims of about 13 per cent.
The average yearly drop that the Minister quoted was based on the fact that between April 2002 and March 2004 the Department of Corrective Services received 50 claims from inmates and offenders—an average of 25 claims per year. Of those 50 claims, 45 involved alleged negligence. Between 17 March 2004 and 17 June 2005 the Department of Corrective Services received 18 claims from inmates and offenders, of which two claims were subsequently withdrawn when the requirements of Part 2A of the Civil Liability Act 2002 were pointed out to the claimants. All the claims involved alleged negligence. That translates to an average of 13 claims per year—a 60 per cent reduction from the 2001-02 figures.
Most of the claims lodged since the commencement of the operation of the Civil Liability Amendment (Offender Damages) Act 2004 have not reached finality, so trends have not yet emerged. Of the common law cases that have been finalised since 1 January 2003, the trend has been fairly stable: some 28 per cent have been settled, 54 per cent have resulted in a verdict for the plaintiff, and 18 per cent have resulted in a verdict for the department. In 2003, 20 offender claims were finalised, seven by settlement, nine by verdict for the plaintiff, and four by verdict for the department. In 2004, 26 offender claims were finalised, seven by settlement, 14 by verdict for the plaintiff, and five by verdict for the department. As at 17 June 2005, in addition to the two claims that were withdrawn, five claims have been finalised, one by settlement, and four by verdict for the plaintiff.
The scheme to be introduced by this bill is not intended to reduce the number of claims lodged against protected defendants. What it will do is ensure that any successful claims can be acted upon by victims of the offender concerned, to ensure justice between the offender and the victim and not just between the offender and the State. I commend the bill to the House.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 3 agreed to.
Ms LEE RHIANNON [9.10 p.m.], by leave: I move Greens amendments Nos 1, 2 and 6 to 21 inclusive in globo:
No. 1 Page 3, schedule 1 [1], lines 18–24. Omit all words on those lines. Insert instead:
victim claim means a claim for personal injury damages in respect of the death of or injury to a person caused by conduct of an offender that, on the balance of probabilities, constitutes an offence. 18870 LEGISLATIVE COUNCIL 19 October 2005
No. 2 Page 3, schedule 1 [1], lines 27–8. Omit all words on those lines.
No. 6 Page 4, schedule 1 [1], line 25 on page 4 to line 17 on page 5. Omit all words on those lines. Insert instead:
26M Victim claims permitted to be satisfied from victim trust fund
(1) For the purposes of this Division, a victim claim against an offender is permitted to be satisfied from a victim trust fund comprising offender damages awarded to the offender only if the claim is eligible to be satisfied from the victim trust fund as provided by this section and, within the eligibility period for the victim trust fund, the person:
(a) commences proceedings on the claim in a court (or proceedings by the person on the claim are pending in a court at the beginning of the eligibility period), and
(b) gives the protected defendant responsible for the victim trust fund notice in writing of those proceedings together with such details of those proceedings as the protected defendant may request, and
(c) certifies to the court before which those proceedings are taken that the person is making the claim as a claim that is eligible to be satisfied from the victim trust fund.
(2) A victim is eligible to be satisfied from a victim trust fund comprising offender damages only if the claim is in respect of the death of or injury to a person caused by conduct of the offender that, on the balance of probabilities, constitutes an offence in respect of which the offender was an offender in custody when the offender suffered the injury for which those offender damages were awarded.
(3) The eligibility period for a victim trust fund comprising offender damages awarded to an offender is the period of 6 months following the date (the award date for those damages) on which the claim for those damages is finally determined by a court award of those damages.
(4) A claim is not finally determined by a court until the time for appealing against the award of damages expires with no appeal having been made or when all appeals against the award have been withdrawn or finally determined.
(5) The protected defendant responsible for a victim trust fund must give the registrar of each court in which a victim claim may be brought notice of each victim claim of which the protected defendant is given notice under this section.
No. 7 Page 5, schedule 1 [1], line 23. Omit "against the offender". Insert instead "that is eligible to be satisfied from the victim trust fund".
No. 8 Page 5, schedule 1 [1], lines 28–30. Omit all words on those lines. Insert instead:
(c) stating that a victim claim that is eligible to be satisfied from the victim trust fund and that is made within the eligibility period for the fund is permitted to be satisfied from the fund.
No. 9 Page 6, schedule 1 [1], lines 5 and 6. Omit "be entitled to make a victim claim against the offender". Insert instead "have a claim that is eligible to be satisfied from the fund".
No. 10 Page 6, schedule 1 [1], line 13. Insert "within the eligibility period for the victim trust fund" after "Division".
No. 11 Page 6, schedule 1 [1], line 33. Omit "against the offender". Insert instead "that is eligible to be satisfied from the fund".
No. 12 Page 7, schedule 1 [1], line 15. Omit "eligible". Insert instead "permitted".
No. 13 Page 7, schedule 1 [1], line 22. Omit "eligible". Insert instead "permitted".
No. 14 Page 7, schedule 1 [1], line 31. Omit "eligible". Insert instead "permitted".
No. 15 Page 7, schedule 1 [1], line 38. Omit "eligible". Insert instead "permitted".
No. 16 Page 8, schedule 1 [1], line 3. Omit "eligible". Insert instead "permitted".
No. 17 Page 8, schedule 1 [1], line 15. Omit "eligible". Insert instead "permitted".
No. 18 Page 8, schedule 1 [1], line 30. Omit "eligible". Insert instead "permitted".
No. 19 Page 10, schedule 1 [1], line 10. Omit "eligible". Insert instead "permitted".
No. 20 Page 10, schedule 1 [1], line 35. Omit "eligible". Insert instead "permitted".
No. 21 Page 11, schedule 1 [1], line 5. Omit "eligible". Insert instead "permitted".
The Greens amendments seek to strike a fairer balance when it comes to claims by victims to awards of damages and compensation to offenders. The bill as it stands essentially provides no time limit for any claim by 19 October 2005 LEGISLATIVE COUNCIL 18871 a victim against an offender. It is not limited to claims made by those who are victims of the offence that presently results in the offender being in gaol. For example, an offender who conducts a break and enter against a home owner in Victoria in 1990 spent six months in gaol for that offence. Much later the same person is found driving under the influence in New South Wales and is again gaoled in 2005. While in gaol the offender is repeatedly stabbed with a pair of scissors by a fellow inmate who is psychotic. Assuming the offender can overcome the 15 per cent whole impairment threshold and recover damages against the State—and as we know, that is not a safe assumption by any means—under this bill the offender may also face a claim for property damage from the break and enter more than 15 years after it happened.
The Government would never allow insurance companies to be in that position. It is inherently unfair to defendants to have to face such old claims. If a person commits a crime he or she does their time in prison and that should be the end of it. It also means that the Department of Corrective Services would have to locate and notify each and every possible past victim. For some prisoners with lengthy criminal records that will be an extremely difficult administrative task for the department. I believe it is just not practicable. That again highlights that this is a Daily Telegraph bill; it is not a considered piece of legislation that will bring more justice to our community. The Greens amendments limit the class of victims who can make a claim to those who are victims of the offence for which the offender is presently in custody. This is a simpler, more practical and fairer solution. I commend the amendments to the Committee.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [9.13 p.m.]: The Government opposes Greens amendment No. 1. In relation to who can claim, the scheme only applies to personal injury victims, including victims who have suffered psychological injury. It does not cover property damage victims such as cases of theft since, in most cases, people can take out insurance against property damage. A victim of a robbery could claim injuries suffered in the robbery but not in relation to the property stolen.
The Government opposes this amendment. At first glance combining subparagraphs (a) and (b) appears to simplify the definition, but that is not so. The amendment removes the words "or resulting from" from subparagraph (b). The inclusion of those words in the bill is not mere semantics. The bill allows a victim claim where a person's death results from an injury to the person caused by the offender's criminal conduct even if the conduct did not directly cause the death. For instance, a person may be assaulted, not fatally, but may develop an infection from the injury that proves fatal. The bill includes this scenario; the amendment does not. Justice clearly requires that the words "or resulting from" remain in the bill, and for that reason the amendment is opposed.
The Government opposes Greens amendment No. 2 as it would make the bill inconsistent with existing section 54A of the Act, which was inserted by the Civil Liability Amendment Act 2003 in response to the Presland case. Section 54A restricts the damages that can be awarded to people who are injured while committing what would otherwise be a serious offence but who cannot be found criminally responsible because they are mentally ill. Nevertheless, a person who is mentally ill at one time may not be mentally ill permanently. That person may commit other offences and be imprisoned. It would be incongruous if some persons injured by criminal acts could be included in the scheme, and others could not.
The Government opposes amendments Nos 6 to 21 inclusive. Essentially amendment No. 6 would restrict victim claims to injuries suffered by the offender whilst in custody for an offence against that victim. But what of the victim who is a victim of a past offence? What about a victim of the offender's first recorded assault, for which the offender was not imprisoned as a first offender, and the offender subsequently re-offends and assaults someone else and is imprisoned? Should victims have to take their chances on the subjective features of offenders that may enable them to avoid imprisonment? Of course not.
I will give a specific example. Many victims of sexual assault, particularly in family situations, do not proceed with their claim of sexual assault because they are either emotionally unable to do so, are too young to withstand the court experience, or they take the view that there are sufficient charges sustainable against an offender to probably result in a lengthy prison sentence and one more will not make much difference so they do not proceed with a criminal charge. Those people have just as much right to act against the offender as an "official" victim. The Government opposes amendment No. 7. The protected defendant is only in a position to ascertain victims of the offender. It is not in a position to determine whether a claim is eligible to be satisfied from the victim trust fund. The court hearing a claim ultimately determines whether a claim is eligible to be satisfied from the victim trust fund. Adoption of this amendment would derogate from the power of the court. 18872 LEGISLATIVE COUNCIL 19 October 2005
The Government opposes Greens amendment Nos 8, 9 and 10 as they add nothing to the bill and are meaningless. The Government opposes Greens amendment No. 11. A claim is against the offender. It is, at this stage, still to be determined if the claim is eligible to be satisfied from the fund. A court may determine that it is not eligible. In relation to Greens amendments Nos 12 to 21 inclusive, eligibility is referable to the Act. "Permitted" is not referable. It is inconsistent for Ms Lee Rhiannon to propose amendments that remove the word "eligible" from amendments Nos 12 to 21 inclusive and inserts the word "eligible" in amendments Nos 9 and 11.
The Hon. DAVID CLARKE [9.18 p.m.]: For the same reasons articulated by the Minister the Opposition also opposes these amendments. It is a pity the Opposition was not given a copy and greater notice of the amendments so that we could go through them in greater detail. Greens amendment No. 2 does not appear to make any sense at all. It says to omit all words from lines 27 and 28, and that would make no sense at all. If we had more notice of these amendments, of course, we would be able to pick up these things. I note that Ms Rhiannon assumes that it refers to lines 27 and 28. If that is the case, it makes no sense whatsoever. It may be that it was lines 27 to 38. Perhaps Ms Rhiannon could clarify that. In any event, based on what is there, the Opposition will oppose all of these amendments.
The Hon. PETER BREEN [9.20 p.m.]: I support amendment No. 1. It is important to understand that the victim's claim is made against a prisoner, who is in a disadvantaged position. Often a victim will have the benefit of a claim under the victims compensation legislation. That claim can be as much as $50,000, as the cap presently stands. If the prisoner is involved in some kind of accident or injury in the prison when there has been a breach of duty of care by a prison officer and that claim is $50,000 or less, then the claim under the compensation legislation would be subsumed by that claim and the prisoner would, as a result of the legislation, not be entitled to any damages for what might amount to a considerable injury. Greens amendment No. 1 seeks to narrow the claim, and to that extent I support it.
In relation to Greens amendment No. 2, as to what appear to be lines 27 and 28, I agree with the observation of the Hon. David Clarke that that means that the particular amendment no longer makes sense. If the amendment is extended to line 38, then amendment No. 3 makes no sense. It seems to me there is an error in the numbering of the amendments.
The Hon. David Clarke: You mean in the construction?
The Hon. PETER BREEN: It seems to be a pagination error in relation to the numbering. If that can be sorted out then we can have a debate on it, but otherwise it seems to me we are probably stuck with the bill as it is.
The Hon. David Clarke: Do you agree that whatever way one reads it, it makes no sense whatsoever?
The Hon. PETER BREEN: Yes, I agree that it does not make sense, that is, amendments Nos 2 and 3.
Ms LEE RHIANNON [9.20 p.m.]: I apologise. I had not picked up that there is a clear problem in the wording on the amendment sheet that we have before us. I cannot resolve that problem at the moment with the information I have. I apologise to the House for the confusion.
Amendments negatived.
Ms LEE RHIANNON [9.21 p.m.], by leave: I move Greens amendments Nos 4 and 5 in globo:
No. 4 Page 4, schedule 1 [1], lines 2–5. Omit all words on those lines. Insert instead:
(1) The following offender damages awarded to an offender are to be held in trust for the offender by the protected defendant liable to pay those damages and may be paid out only as authorised by this Division:
(a) damages awarded for non-economic loss,
(b) damages awarded for past or future economic loss.
No. 5 Page 4, schedule 1 [1]. Insert after line 24:
(6) In this section, a reference to past or future economic loss is a reference to:
(a) past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, and
(b) future economic loss due to the deprivation or impairment of earning capacity. 19 October 2005 LEGISLATIVE COUNCIL 18873
The bill attempts to allow all past victims to claim against the whole of any personal injury damages awarded to the offender. The Greens believe a more equitable outcome is to allow the claims to be met from that proportion of the offender's damages that are related to general damages or the pain and suffering element of damages. That would result in the much more desirable and sensible situation, whereby a seriously injured offender who has received damages to cover future economic loss and the costs of medical treatment—damages necessary to carry on with his or her life after gaol with adequate medical treatment and without being a burden on Medicare and social security—is allowed to retain those damages. I commend these amendments to the House.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [9.24 p.m.]: The Government opposes these amendments. In relation to amendment No. 4, the amendment would mean that only damages for economic loss and non-economic loss would be included in a victims trust fund. Damages awarded for future care would not be included. That would place offenders in a different position to other litigants in the community who receive damages and simultaneously owe money to creditors. At present there is nothing to stop a creditor of a successful litigant enforcing a judgment debt against damages awarded to the litigant, notwithstanding that a substantial component of such damages is for that person's future care.
In assessing different heads of damages, courts only perform a calculation; there is no requirement that a plaintiff must spend the damages in the same amounts that a court has assessed. Even where a trust fund is managed by the Public Guardian for a catastrophically injured person, the money is the person's and could be seized by a judgment creditor of the person, notwithstanding that damages were assessed in anticipation of providing for the person's future care. In relation to amendment No. 5, economic loss and non-economic loss are defined, and comprehensively addressed, in divisions 2 and 3 respectively of part 2 of the Civil Claims Act. It is ridiculous to insert a different definition for this division of the Act.
The Hon. DAVID CLARKE [9.26 p.m.]: The Opposition also opposes these amendments. We support the words and their intention as proposed in the bill.
Amendments negatived.
Schedule 1 agreed to.
Title agreed to.
Bill reported from Committee without amendment and passed through remaining stages.
HEALTH LEGISLATION AMENDMENT BILL
GENE TECHNOLOGY (GM CROP MORATORIUM) AMENDMENT (POSTPONEMENT OF EXPIRY) BILL
Bills received.
Leave granted for procedural matters to be dealt with on one motion without formality.
Motion by the Hon. Tony Kelly agreed to:
That the bills be read a first time and printed, standing orders be suspended on contingent notice for remaining stages and the second readings of the bills be set down as orders of the day for the next sitting day.
Bills read a first time and ordered to be printed.
CONFISCATION OF PROCEEDS OF CRIME AMENDMENT BILL
RESIDENTIAL TENANCIES AMENDMENT (SOCIAL HOUSING) BILL
Messages received from the Legislative Assembly agreeing to the Legislative Council's amendments. 18874 LEGISLATIVE COUNCIL 19 October 2005
NATIONAL PARKS AND WILDLIFE AMENDMENT (JENOLAN CAVES RESERVES) BILL
Second Reading
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [9.30 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
I present the National Parks and Wildlife Amendment (Jenolan Caves Reserves) Bill 2005 to facilitate the Government’ s karst reserve management restructure.
This Bill proposes to remove Division 8 of Part 4 and related schedules from the National Parks and Wildlife Act 1974. This will effectively abolish the Jenolan Caves Reserve Trust and transfer care control and management of the Jenolan, Wombeyan, Borenore and Abercrombie Karst Conservation Reserves to the Department of Environment and Conservation.
The Council on the Cost and Quality of Government recommended that the four karst conservation reserves be transferred from the Jenolan Caves Reserve Trust to the Department of Environment and Conservation to improve financial and visitor experience outcomes. The Council also recommended that a capital works package be initiated to address outstanding infrastructure works. The Government has adopted these recommendations.
One of the fundamental tenets of the Jenolan Caves Reserve Trust was that it be a self-financing and independent entity. In recent years the Trust has been unable to sustain its financial resource requirements, by deferring capital works relying on government grants to carry out some essential works.
Due to the problems with the Trust’s financial model, Council on the Cost and Quality of Government carried out a special review. The Review recommended when the last Trust Board’s term expired in January 2004, an Administrator be appointed to review in detail the management of Trust and recommend a way forward. The review carried out by the Administrator of the financial and structural model of the Trust found that the Trust had performed very well, given its operating parameters. However, visitor numbers have declined and the business model has not proved to be sustainable, with lower levels of revenue from popular sites such as the Jenolan Cave system being insufficient to cover capital works and product development for all four karst reserves under the Trust.
The Government has carefully considered these findings and proposes a sensible, economical and sustainable option for the future management of the karst reserves, ensuring the continued protection and sustainable use of New South Wales’ karst reserve system. The Government has developed a revitalisation package not only to conserve these natural and iconic assets, but also to assist local economies by providing regional employment and increased tourism opportunities. The package includes: • An eighteen million dollar program of works on Jenolan Caves Road, generating new jobs.
• A four million dollar capital works program to upgrade important cave and above-ground infrastructure.
• The establishment of a new specialist unit within the Department of Environment and Conservation to ensure best practice management of karst areas throughout the State of NSW.
• The establishment of a Karst Management Advisory Committee under the National Parks and Wildlife Act 1974 comprised of key stakeholder representatives, including karst scientists, speleologists, traditional owners and the NSW Heritage Office. The role and composition of this Committee will be defined in the Act.
• The consolidation of the management of karst reserves, ensuring that Abercrombie, Wombeyan, Borenore and Jenolan karst reserves are managed, along with the State’s thirty other significant cave systems, by the one organisation. A further one hundred and twenty thousand dollars per annum in additional funding will also be provided to enhance management outcomes.
To facilitate this comprehensive initiative, minor amendments are required to the National Parks and Wildlife Act to transfer management responsibility from the Jenolan Caves Trust to the Department of Environment and Conservation.
This is a sensible and necessary Bill.
I commend this Bill to the House.
The Hon. RICK COLLESS [9.31 p.m.]: I lead for the Opposition on the National Parks and Wildlife Amendment (Jenolan Caves Reserves) Bill. I will give a brief outline of the history of the Jenolan Caves. They are the property of the people of New South Wales. They were incorporated into a reserve for the protection of the natural environment in 1866. At the time a keeper of the caves was appointed named Jeremiah Wilson. Apart from being responsible for protecting the caves, he conducted tours and was allowed to charge for things 19 October 2005 LEGISLATIVE COUNCIL 18875 such as candles and cave costumes to assist him to meet the expenses. He was also able to provide accommodation, and this became the first Caves House. Jeremiah worked very hard to develop Jenolan as a tourist attraction and was very successful. However, in 1895 fire destroyed much of the original Caves House and a new Caves House was built and cave tour tickets began to be sold. That situation existed until the 1980s.
The New South Wales Government Tourism Bureau, which at the time was responsible for the reserve, opted to offer a 99-year lease for Caves House. In the 1980s the Jenolan Caves Reserve Trust was set up. The trust also administered Wombeyan and Abercrombie Caves and in more recent times was given responsibility for the Borenore Caves, near Orange. The trust comprised a number of representatives from various community groups and government departments with an interest in running the caves and the reserves on which they are situated. The Coalition believes that the then Minister never supported the trust model set up by the previous Government to administer Jenolan Caves. In fact, the second reading speech was delivered by the honourable member for Menai and not the Minister. One wonders why the Minister did not front up on this issue. Is he embarrassed about it?
Under section 59ZE of the National Parks and Wildlife Act the Minister has the right to remove any or all of the members of the trust board from office and, if necessary, to appoint an administrator. That is what the Minister did when he appointed Mr Alan Griffin to run the caves. But subsection (2) of the same section states that the Minister must appoint new members to the trust board as soon as practicable, and in any case within six months of removing the members. However, it is apparent from subsection (1) (b) that the only circumstance in which an administrator can be appointed to the trust is when the Minister has removed all members of the trust board from office. The Minister did not do so. The term of office of members of the trust board expired by effluxion of time and was not truncated by removal. It follows then that there was no power to appoint the administrator.
The Opposition has considerable concerns about the fact that the administrator has been in place for 21 months. We are of the view that the Government may be running the caves in an illegal way. The New South Wales Speleological Council obtained a legal opinion from Senior Counsel well known to the Labor Party—in fact, a member of the Labor Party—that says the same thing. The big issues with Jenolan Caves have always related to the Jenolan Caves commercial zone, which in the legislation the Government calls the "visitor use and service zone". It was the failure of the Government to properly promote and administer the caves that led to the trust standing down at the end of 2003 and Mr Griffin being appointed. One has only to look at the fall-off in visitor numbers to understand how badly the Government managed Jenolan Caves. When the Coalition left office in 1995 there were around 260,000 visitors each year to Jenolan Caves. In 2003 when the trust board quit, there were 214,453 visitors, a fall of 17.8 per cent. That is a fairly substantial number in anyone's book.
The bill does not address these issues at all. It addresses the peripheral issues without addressing the core issue of the management of the commercial zone at Jenolan Caves. The bill transfers the other lands—that is, the land surrounding the commercial zone, Abercrombie, Borenore and Wombeyan Caves—to the Director General of the Department of Environment and Conservation. It leaves the commercial zone in the hands of the administrator. It dissolves the trust and transfers the trust staff to the Department of Environment and Conservation [DEC] except, presumably, for those involved in the administration of the commercial zone. The inadequate second reading speech of the honourable member for Menai did not spell out exactly how many staff would be transferred to DEC and how many would remain under the control of Mr Griffin. That information has not been provided. Given that in the opinion of many people Mr Griffin has been doing a fairly inadequate job, probably because the Government has not backed him up—as has been suggested to me by a number of people—that does not seem to be a satisfactory arrangement.
The Opposition has no problem with the transfer of the Wombeyan, Abercrombie and Borenore Caves to the DEC. That is in the best interests of the environment and, frankly, those caves will never in any way be self-sustaining. They are certainly not what might be described as profit centres for the National Parks and Wildlife Service and they were a considerable drain on the resources and reserves of the Jenolan Caves Trust Board. That is particularly the case in relation to Borenore Caves, which were added to the board's responsibilities a few years ago, notwithstanding that the board did not receive supplementary funding for their management. The staff at Wombeyan Caves ran the caves without the provision of additional staff. It was simply an additional responsibility for the staff at that time. We do not oppose that aspect of the legislation.
It is not surprising that the number of people visiting Jenolan Caves has fallen. There has been very little promotion of the caves as a tourist destination. When did members last see an advertisement for Jenolan Caves in a metropolitan newspaper or magazine, hear an advertisement on radio or see an advertisement on 18876 LEGISLATIVE COUNCIL 19 October 2005 television? It simply does not happen. In fact, the trust was spending 76 per cent of its money on labour costs and only 2 per cent on marketing. Would it not have been great to see the Jenolan Caves on a program such as Getaway, or one of those good programs that really attract people to these facilities?
Jenolan Caves has not been run in any sense as a commercial operation and it is clear the Government has no idea whatsoever how to run a business or, indeed, how to negotiate a contract. In 2002-03 there was a significant wage increase of 9 per cent, which was supposed to be paid only if there was a productivity increase. I understand there were no productivity improvements at the caves but that the trust was told it had to pay the 9 per cent increase regardless. We know the Government is now running out of money, that there has been a wages explosion, and that a large proportion of Government outlays is now taken up by wages. What has happened at Jenolan Caves is a microcosm of what has happened across the New South Wales public sector under the maladministration of this Government.
The bill establishes a Karst Management Advisory Committee and a Karst Conservation Unit, to be based in Bathurst. The latter will be very expensive, as the shadow Minister said in last year's debate on the previous very brief bill that the Government introduced, which would have abolished the trust. That bill did not receive majority support in this House, so the Government did not proceed with it here.
Last year the administrator estimated that the karst conservation unit would cost $350,000 per annum plus $140,000 in set-up costs, but the Minister's briefing note states that the five karst conservation unit staff will be located in Bathurst and will inject some $400,000 a year into the local economy. That suggests that the costs have gone up significantly, because I assume that the $400,000 is the after-tax income of the five staff. Alternatively, the Minister is exaggerating in that he is suggesting that all their salaries will be spent in the town or maybe the staff will be given a $140,000 package each.
The Karst Management Advisory Committee will be just that. Its function will be to advise the Nature Conservation Council on a range of matters, including the conservation and management of karst environments; any plan of management for land reserved under the Act, which is important because a new plan of management for Jenolan Caves is currently being prepared; the development, implementation and review of policies directed towards achieving the objects of the Act in relation to karst environments; opportunities for sustainable visitor use and enjoyment of karst conservation reserves compatible with the reserves' natural and cultural values; and opportunities for sustainable use of any buildings or structures on, or modified natural areas of, karst conservation reserves, having regard to the conservation of the reserves' natural and cultural values.
The Opposition was critical of the previous arrangements for managing Jenolan Caves in that the trust board did not have sufficient people on it with a business background. I note that the people to be appointed to the Karst Management Advisory Committee have an environmental or scientific background. That is appropriate when we are talking about managing karst environments, but it is not appropriate when advising on opportunities for sustainable visitor use, sustainable use of buildings, marketing opportunities and so on, which are purely commercial issues.
In introducing this legislation the Government runs the risk of falling into exactly the same trap it fell into before in that it will not have on tap the expertise it needs to operate what is quite a significant commercial operation. Jenolan Caves is New South Wales' largest inland tourist attraction in that it attracts 214,000 visitors a year. There used to be many more visitors, but visitor numbers have dropped off since then. I suspect that every member of this House would have visited Jenolan Caves at some time or other, whether as a child or an adult, and gone through one or more of the caves, perhaps with their children.
As the Minister for Lands, and Minister for Rural Affairs would know, many people have also gone through the magnificent caves at Wellington, which are also a great tourist attraction. Indeed, I suspect that probably 70 per cent to 80 per cent of people in New South Wales have visited Jenolan Caves at some time. It is unquestionably an extremely significant tourist attraction and ought to be one of the jewels in the crown of the National Parks and Wildlife Service instead of being a drain on resources. Of course, if people do not visit the caves, if the caves are not promoted and there are insufficient gate takings, those outcomes will not be achieved.
New section 58 provides the administrator with the legal authority, which he has lacked for the last 21 months, to administer the commercial zone of Jenolan Caves during the relevant period. This is defined in section 45 as being from the time the Act is proclaimed to the time a new plan of management is adopted for Jenolan Caves visitor use and the services zone. Given that this is a 99-year lease dating from 1989, Mr Griffin could have a job for life. But one suspects that the Government is simply trying to starve the lessee of Jenolan Caves House, Mr Archer Field, into submission. 19 October 2005 LEGISLATIVE COUNCIL 18877
A letter dated 15 June this year from David Templeton, Manager of JMA Food and Beverage, which runs the kiosk at Jenolan Caves, to Bob Carr, the former Premier of New South Wales, points to problems the Government has been creating for lessees at the Jenolan Caves commercial zone. I repeat that the bill does not deal with those issues. In fact, the Minister denied this in his reply. The letter states:
Dear Mr Carr
JMA provides food and beverage to staff and tourists at Jenolan Caves.
Sonic water tested Jenolan Caves tap water and confirmed that drinking water contains E. coli and other bacteria from water tanks with open tops. The Administrator and Trust Managers were told this was happening.
JMA also believes some of the breaking water pipes are made of asbestos. JMA understood the water pipes should have been fixed years ago.
JMA was told that Government commissioned Byron Johnson to investigate these and other problems 2 years ago. Since then Trustees were sacked—
We know that was not exactly the case—
An Administrator was appointed for 6 months and the Trust managers retained. Alan Griffin said he would fix things in 6 months and after 1½ years the problems seem to be much worse.
JMA really wants the Government and Resort [to] fix these problems immediately or to set up a public inquiry and find out why people's lives continue to be placed in danger and these very important things ignored.
JMA and every staff member ask you to find the time to deal with this now.
Did Mr Templeton and his staff members receive a response from Mr Carr to this very important issue—water possibly contaminated with bacteria that could give cave visitors gastroenteritis and worse? One has to wonder why the Government, which is supposed to be responsible for issues such as providing clean water to visitors to Jenolan Caves, has taken such a cavalier attitude towards this issue. Did the Government not care about the health and safety of visitors to the caves, or was this part of the Government's plan to try to undermine the lessees in the commercial zone and force them out of business so the Government could carry out its preferred option, which is to amalgamate caves tours with the operations of Caves House and other businesses in the commercial zone?
If that is the case, the Government stands condemned. I am concerned about the way in which the Government has been prepared to put people's health at risk to fulfil its objective of gaining control of the commercial zone. The shadow Minister said in the second reading debate in another place that he had seen some material suggesting that no matter what is done with Caves House, it cannot stand on its own two feet, and that the operator is always destined to lose money on Caves House.
The suggestion is that by integrating the operation of cave tours with Caves House, cave tours can subsidise the operation of Caves House as a guesthouse and, by so doing, presumably make a small profit out of the entire operation. That is a very negative way of looking at what is one of the greatest tourist attractions in inland New South Wales—Jenolan Caves. It is interesting to note that 10 years ago 21 per cent of visitors to the caves stayed at Caves House. However, lack of synergy between cave tours and Caves House has meant that the figure is now down to 11 per cent. Interestingly, tour operators refer just 1 per cent of guests to Caves House.
Clearly, the Government, the operators of cave tours and the lessee of Caves House have some unresolved issues and conflict. This operation, along with Kosciuszko National Park, Royal National Park, Ku- ring-gai Chase National Park and a number of others, ought to be a jewel in the national parks crown and a profit centre for the National Parks and Wildlife Service. On the basis of the Government's suggestion, I do not think that will happen at all. Once again, I am not the only one who is expressing these concerns. The President of the New South Wales Speleological Council, Megan Pryke, wrote to me in June expressing grave concerns, and I ask the Minister to address those concerns in his reply. Ms Pryke wrote:
We are concerned that the Government proposal is not in the best interests of the Reserves and may lead to a decline in the management quality for these important areas, which are iconic natural assets. This is for the following reasons:
The Government has refused to release detailed costings of its new management model. We understand that whilst it is proposed to achieve some savings by way of administrative overhead, the overall proposed business model will remain the same and there are no detailed plans on how to increase revenue from these areas. The figures that the Government has provided only relate to the first stage of the transfer and exclude the impact of Jenolan. Requests for detailed costings have been refused. The Review process has been shrouded in secrecy. A copy of the … Review is available. Requests for detailed costings have been refused. Requests for other documentation have been denied on the basis that they are Cabinet documents. 18878 LEGISLATIVE COUNCIL 19 October 2005
Something about those arguments is very familiar to members on this side of the House. Ms Pryke continues:
There is no clear proposal for the future operation of the Jenolan Caves commercial precinct, including cave tours. The possible licensing of commercial operations at Jenolan to a private operator is a matter of great concern. This is likely to remove the strong management presence on site, and result in a large part of revenue from cave touroperations, which are currently public funds, being diverted to private profit, and to subsidise the currently unprofitable privately operated Caves House hotel. Any such proposal should be fully considered prior to any management restructure.
The karst on Trust land has been managed as a much higher standard in the recent past and karst within the NPW estate. The National Parks and Wildlife Service has had inferior karst expertise, with little in the way of karst experts located on site. Whilst this proposal has the opportunity to enhance management of karst in the NPW estate we consider that management of the Trust lands may suffer. We have grave concerns about the ability of the National Parks and Wildlife Service to manage these Reserves properly, and in particular to administer the commercial operations at Jenolan.
In particular, we consider that the use of a stakeholder-based management board representative of many interests (including National Parks and Wildlife Service) has allowed the Trust to manage at a higher level than pure National Parks and Wildlife Service management. The proposed Statewide Karst Advisory Committee is no substitute for the close involvement of stakeholders in management of the Trust lands. The Government refuses to countenance any closer degree of stakeholder involvement in management.
There is no legal reason why the Government could not provide the funds proposed whilst retaining management of the Trust areas under the stakeholder-based management board with appropriate expertise. The Government has been unable to provide us with a satisfactory explanation of why it considers such a model is not feasible.
The proposed Karst Unit will be in a policy division of DEC, removed from the day-to-day management of reserves. The Administrator has told us that the Karst Unit will levy a charge on reserve management for some other services which it could provide to each reserve, which would provide a major disincentive for reserves to seek its advice unless compelled to do so.
Independently of the Opposition the New South Wales Speleological Council has reached very similar conclusions. It is concerned about the same sorts of issues that the Opposition is concerned about. We are concerned about the day-to-day administration, particularly of the commercial zone. We are concerned whether karst management is going to improve under this new model or whether it will deteriorate. We are concerned about the lack of involvement of stakeholders in the administration of Jenolan Caves, which the Speological Council has indicated has allowed the trust to manage at a higher level than pure National Parks and Wildlife Service management. And we are concerned that, if the Government achieves its stated end of integrating the cave tours with the running of Caves House, a significant revenue stream will be lost to the Government, a revenue stream that can be used for conservation purposes within the National Parks and Wildlife Service. Jenolan Caves ought to be a profit centre for the National Parks and Wildlife Service, one of the jewels in the crown, as is Kosciusko National Park. I quote from a letter the shadow Minister received from the Minister dated 4 March 2005, in which he addressed this very issue. He states:
To ensure transparency and accountability in the management of Jenolan and other DEC-managed Caves, the DEC will compare, in close consultation with the Karst Management Advisory Committee and the Jenolan Management Advisory Committee, the state of the cave report. This will be linked to the new state of the parks reporting system, which the first stage of the cave report expected to be published in 2006.
The Department of Environment and Conservation will also ensure that as part of its annual report tabled in the New South Wales Parliament separate information will be included on financial management reports for the four reserves, including the capital works program and state of the environment/caves reports. In broad terms this information will be similar to that contained in the existing Jenolan Caves Reserve Trust Annual Report.
These two measures, I believe, respond constructively to your concern that should management responsibility for Jenolan Caves be transferred from the trust to the Department of Environment and Conservation accountability to the broader public and to the Parliament will be reduced. My aim is to ensure that this does not occur.
I repeat the Minister's last sentence, "My aim is to ensure this does not occur." Nothing currently before the House, in the legislation, in the scanty contribution made by the honourable member for Menai or in the Minister's briefing note indicates an appropriate level of reporting on the caves to the Parliament, and that it will be separated from the broader Department of Environment and Conservation report to inform people about what is going on at the caves. The bill does not deal with the real issues affecting Jenolan Caves, the management of the commercial zone, or whether the cave tours should be operated by the private sector or continue to be run by the Government. The Opposition in another place asked the Minister to consider deferring the bill and referring the management of Jenolan Caves to an upper House committee. We felt this was necessary because the present plan is incomplete. The bill does not deal with the broader range of concerns raised by the Opposition, speleologists and the current lessees.
A better structure must be established for the commercial zone at Jenolan Caves. The administrator, Mr Alan Griffin, in his interim report dated 31 March 2004, put forward a number of models for administering the 19 October 2005 LEGISLATIVE COUNCIL 18879 caves. His preferred options were a split ownership model under which responsibility for cave tours would remain separate to the accommodation, either run by the Government or by license to a private operator, or an integrated lease in which the cave tours and accommodation will be run by a single entity and will be offered as an integrated package to that entity. The bill does not address those issues. I feel sure that Mr Griffin—unless he wants to stay at Jenolan Caves for the rest of his life—would like those matters dealt with. An inquiry would be able to determine constructively the optimum structure.
This is a positive suggestion, consistent with the way in which we have tried to address the management of Jenolan Caves over the past 18 months. We want the New South Wales taxpayer to get the best value for money, and for the people employed there to retain their jobs. We also want the best environmental outcomes for the caves and for future generations to be able to visit and enjoy the magnificent splendour of the caves. The bill does not achieve those aims. We will not oppose the bill, but we will seek an upper House inquiry to investigate the best way of managing the commercial zone at Jenolan Caves. I will have more to say on that at a later date.
Debate adjourned on motion by the Hon. Peter Primrose.
ADJOURNMENT
The Hon. HENRY TSANG (Parliamentary Secretary) [9.57 p.m.]: I move:
That this House do now adjourn.
LIBERAL PARTY MAYORS
The Hon. DON HARWIN [9.57 p.m.]: During September Kevin Schrieber was re-elected as the Mayor of Sutherland, Bill Carney was re-elected as the Mayor of Strathfield and Andrew Petrie resumed the mayoralty he held previously in Woollahra. These people are friends of mine. Another three friends of mine— Nick Varvaris, Ted Seng and Nick Dyer—were elected to mayoralties for the first time, and I congratulate them on their election. They are respectively the mayors of Kogarah, Randwick and Leichhardt. I am a great supporter of the Liberals in local government, and it is great to see Liberals making a contribution at a mayoral level. These councillors have been successful because they are strongly community based. In the past seven days I have been at community events at which two of these newly elected mayors represented their residents and ratepayers.
On Sunday 16 October 2005 I attended a rally at Kensington Park organised by the Heffron Community Group to protest the access ramp to Southern Cross Drive at Gardeners Road, an area in which I have taken a particular interest. The access ramp is an ill thought out, piecemeal approach to traffic congestion on Southern Cross Drive and the inner south-eastern suburbs of Sydney. In its current form it will have a dramatic impact on Eastlakes, the Gardeners Road shopping strip at Rosebery, the traffic black spot five ways at Kingsford and a series of residential streets in Kingsford and Kensington, where there will be a serious increase in rat-running.
The project simply cannot go ahead in the form currently proposed by the Roads and Traffic Authority. Ted Seng was there as the Mayor of Randwick supporting his community. I am pleased to see Randwick council playing a key role in organising the rally and opposition to this project. West ward Liberal councillor Scott Nash, who has been a tireless advocate for his constituents for years, was also present at the rally.
Councillor Nick Dyer, the new Mayor of Leichhardt, is the first Liberal mayor of Leichhardt— something that got up the noses of many Greens in terms of what they have been writing in letters to the local Glebe newspaper. I was present at a reception to welcome His Grace Monsignor Luigi Martella, Bishop of Molfetta, Giovinazzo, Ruvo and Terlizzi, along with a delegation of five other priests from this diocese. Nick was there in his capacity as mayor at St Fiacre's Church, Leichhardt, with the parish priest Father Attanasio Gonelli presiding. We attended the reception and the mass there. Nick and I were there at the invitation of Association Puglia New South Wales, whose president is Gianni Corelli—the Vice President is my friend Phil Montrone.
The association organised the reception as the towns of Molfetta, Gioviniazzo, Ruvo and Terlizzi are in the Puglia region, not far from the capital city of that province, Bari. There are large numbers of Pugliese in Sydney, particularly in the local government areas of Canada Bay and Leichhardt, and significant numbers of people from Molfetta and Giovinazzo. Maintenance of religious ties with churches in their countries of origin is 18880 LEGISLATIVE COUNCIL 19 October 2005 one of the most important ways Australians from many different cultures maintain links with their homeland. In fact, St Fiacre's Church has two beautiful representations of the Virgin Mary which commemorate icons and statues in the churches in Molfetta and Giovinazzo. Present at the mass were the confraternities and members of two organisations: Madonna dei Martiri, which is associated with the church in Molfetta, and its President Lauretta D'Agostino, and Madonna di Corsignano, which is associated with the church in Giovinazzo, and its President Pasquale Feretti.
I thank Association Puglia for its hospitality and for this function. In particular, I congratulate the two associations associated with the beautiful Madonna statues and icons. I would love to see the originals in Molfetta and Giovinazzo because the representations of them here in Australia are beautiful. The bishop and his delegation of priests and others from the church in the diocese were also visiting Port Pirie, where a large number of people from Molfetta now live. In fact, the bishop told me that there are more Molfettans in the diasporas than there are in Molfetta these days, but I think that is common not only with many southern European nations but with other nations that have had large emigration. I congratulate all the newly elected Liberal mayors on their election. I wish them well in the year ahead. It is great to see them out in their communities and working hard. [Time expired.]
YOUTH RESIDENTIAL CARE SERVICES
Ms SYLVIA HALE [10.02 p.m.]: I often encounter very unhappy community service workers who are anxious to do their best for the people they assist but who are often prevented from doing so by the system they attempt to prop up. It is not often, however, that an individual worker, out of the blue, sends a cry from the heart about the problems he or she encounters. But last week I received an email addressed to my Federal Greens colleague Senator Kerry Nettle and me from a young worker about the state of youth refuges and the operation of supported accommodation and assistance services in Western Sydney. What follows is an abridged version of that email:
Senator Nettle, I am writing this letter in light of your previous role as a Youth Worker and your obvious commitment to social equality …
Like yourself, my entry into the workforce began as a Youth Worker, for a crisis youth refuge in Sydney's West.
Although I can confidently state that my commitment to the care and protection of young people has remained untarnished over the last eight years, my optimism for prosperity in their lives has changed indeed.
The Department has relied on the "good nature" of service managers and providers to do what their funding agreements require. This would ideally work well if all service managers and providers were "good natured".
However, the ones who suffer most when [a provider's] nature turns out to be "not so good" are young people. This is what angers me the most, above any other issue residential care presents.
The introduction of fee-for-service agreements has dramatically compounded the dim view I hold of the sector that I work in. Fee-for-service or private organisations generally:
▪ Fail to empower, or offer programs, case management/referral services to young people who are homeless or at risk of homelessness;
▪ Recruit people with minimal skills and qualifications, which subsequently results in a lower category of wage entitlement.
▪ Operate for profit, charging the Department of Community Services astronomical amounts of money to house young people who require more care than mainstream residential services can deliver... [money that] the Department continues to pay.
The outcome... is that unskilled workers are being placed in dangerous situations, and the most disadvantaged young people in NSW are not being given the adequate amount of care they deserve.
So what do these services do for our young people?
When I asked this question of a young sixteen year old recently, [a young girl] who has had a lengthy history of residing at services such as these, her response was: "It was great; I could do anything I wanted all day, and never really get in trouble for anything. There weren't really any rules, so you could really do anything."
This same young person was housed at the refuge I managed directly after [experiencing] the fee-for-service she described. She later stated, as do many young people I speak to, that, although she was allowed to do anything she wanted, no one really showed her any guidance or direction.
To sum up, this young girl's story. DoCS would have paid around $3,000 per week to house this young girl in a service for 18 months to achieve absolutely nothing but shelter and good times. 19 October 2005 LEGISLATIVE COUNCIL 18881
This young girl, and many others like her, is a perfect example of why band-aiding does not work. The disadvantaged youth of NSW, at an absolute bare minimum, deserve a standard of delivery of professional care that includes:
● Access to skilled and experienced staff
● Holistic case management
● Access to appropriate referral services
● Independent living skills programs
● Recreational and therapeutic programs
● Educational and vocational guidance.
A glimmer of hope surfaced when I learnt that a youth crisis refuge in Sydney's West had been shut down in July this year. Although the reasons for closure have not been divulged by the Department, it was obvious to me why this happened... let's just call it incredibly bad practice.
So what is the answer?
The answer in my opinion is fairly simple: Accreditation. Accrediting residential services will ensure that optimum care is delivered to all clients (SAAP or otherwise), transparently across the board and eliminate that practice on a larger scale.
I am certainly not suggesting that this will solve all the problems of residential care, but it would undoubtedly be a positive step forward.
Your assistance would be greatly appreciated, for the future of young homeless people in NSW and my own ethical conscience.
The email speaks for itself.
FEDERAL GOVERNMENT INDUSTRIAL RELATIONS POLICY
The Hon. JAN BURNSWOODS [10.07 p.m.]: Tonight I refer to a letter from the Uniting Church in Australia, New South Wales, which I believe was sent to most members of the Legislative Council a short time ago. It is a powerful letter. It is a copy of a letter addressed to the Prime Minister in relation to the proposed changes to the industrial relations system in Australia. As Mr Mein, the moderator of the Uniting Church, said in his covering letter, this issue "will supplant State and Territory industrial relations legislation for a large number of workers". Therefore, I believe this is relevant to us as well as to members of the Australian Parliament. The letter starts by referring to the fact that the Uniting Church is aware—the letter is dated 6 October—that the new legislation has not yet been released. That factor alone is sufficient reason to condemn the actions of John Howard and the Federal Government, apart from condemning the proposed changes outright.
I congratulate the Chief Minister of the Australian Capital Territory, Jon Stanhope, on having the gumption to place the proposed legislation that he and other State and Territory leaders received from the Federal Government on his web site. His actions have provided a beginning for processes of analysing the proposed industrial relations changes. His action has ensured that experts as well as union members and members of the public will be able to examine the legislation, and that lies in stark contrast to the conduct of the Howard Government, particularly its representatives in the Senate who have used a series of procedural devices to ensure that the Senate will have approximately one day to conduct an inquiry to examine the legislation.
I congratulate the Synod of the Uniting Church on the church's employer principles that were adopted by the church in 2001 and have guided the church in its role as an employer. The seven basic principles include the right to work and the right to an adequate and fair remuneration; a balance between life and responsibilities; and the rights of workers as well as the rights of employers. They emphasise that legislation governing industrial relations should have due concern for the needs of families and individuals in society who are poor, lesser skilled, legally vulnerable and economically disadvantaged. They emphasise what I believe is a fundamental right of any employee—to choose collective bargaining as the means of protecting their wellbeing. They emphasise the right of an employee to access membership of associations and unions to win minimum rights and to advance labour benefits.
The seven principles could probably be agreed to by any of us, but the real challenge is to ensure that they are acted upon to prevent the abrogation of those principles that the Federal Government has embarked upon. The Synod has rejected the general directions of the Federal Government's proposed changes and has selected five proposals, in particular, for outright rejection. I congratulate the Synod on its action. The Synod rejects the proposed Australian Fair Pay Commission that will replace the traditional wage-setting role of the 18882 LEGISLATIVE COUNCIL 19 October 2005
Australian Industrial Relations Commission. The Synod rejects the increased use of individual contracts, or Australian workplace agreements, and has spelled out its reasons for doing so at some length. The Synod rejects the abolition of unfair dismissal protections for workers in organisations with fewer than 100 workers. It rejects the overriding of most State awards and worker protections. The Synod also rejects the removal of legislative protections that ensure independent contractors receive remuneration. I congratulate the Synod on its statement and correspondence.
SPEED ON TWEED
BANORA POINT SENIOR HIGH SCHOOL
CASINO TO MURWILLUMBAH RAIL LINE
The Hon. CATHERINE CUSACK [10.12 p.m.]: On Saturday 17 September I attended the fabulous Speed on Tweed three-day festival in Murwillumbah. It was organised by Roger Ealand, a remarkable man who simply loves cars and who has pursued his passion to great benefit of the Murwillumbah community. The Speed on Tweed featured over $30 million worth of historical motor racing cars and was attended by numerous Australian motor racing champions, some of whom were reunited with their cars after many years. My father, Greg Cusack, is a former Australian Hillclimb Champion and Junior Formula 1 Champion and winner of Round Australia Trials in the early 1960s, and he was one such driver. Dad's profile in the official program stated, "Greg was always a threat if his car held together". This could almost be a family motto!
Together with 3,000 people, we dined literally in the main street of Murwillumbah on Saturday night with motor racing great John Bowe and his wife. The Queensland Symphony Orchestra played on one of three large stages. It was a stunning event. I congratulate Roger Ealand and his team of 400 volunteers on their professionalism and the tens of thousands of spectators from across Australia and overseas who attended and poured millions of dollars into the local economy. The organisers were not deterred by the rather bizarre decision made a few weeks earlier by judges for the Northern Rivers Tourism Award to overlook Speed on Tweed for an award in the category of "Significant Festival and/or Event". Apparently Speed on Tweed failed technically to meet the criteria that applied in Queensland. There were no complying nominations, so the judges decided not to make the award at all. Speed on Tweed was given an encouragement award instead. The local parliamentary representative, the honourable member for Tweed, Neville Newell, apparently supported this ridiculous position.
On 27 September the shadow Cabinet met at the Twin Towns Services Club. I thank the people of Tweed for the warm reception accorded to our new leader, Peter Debnam. After the meeting I accompanied the shadow Minister for Education and Training, Brad Hazzard, to the Banora Point High School, where we met with a number of bewildered and depressed parents. The school, which opened last year, is a magnificent $29 million facility. It is supposed to be a year 7 to 12 school, but construction of phase two of the buildings has been put into orbit by one of those notorious Department of Education and Training reviews whereby everyone runs in ever-increasing circles that seem to move further and further away from a decision.
Banora Point High School is in limbo as to whether it will offer years 11 and 12 in the future, and this uncertainty has resulted in a 40 per cent loss of prospective enrolments for next year. The losses are mainly being picked up by the local Catholic school. A wonderful $29 million facility is being strangled at birth by the indecision of this Government. Its local parliamentary representative, Mr Neville Newell, told the other place on 27 June 2003 that the Labor Government had committed funds for the construction of stage two of the school to turn it into a senior high school. However, he then declined to name a commencement date for the work or to make representations on behalf of the school to the Minister for Education and Training, Carmel Tebbutt, because, according to Mr Newell, she was "too new in the job".
In December last year he was presented with a petition collected by the parents and citizens association for presentation to the Parliament, but it appears that this has become stuck in the boot of his car. I have viewed a copy of the petition and there are some technical problems that Mr Newell ought to have explained to his constituents. Regrettably, he chose to leave his constituents in ignorance of the correct procedures. Rather than being represented, the school community is being neglected and at times even bullied. It is perplexing to imagine how a Government could spend $29 million on a state-of-the-art new high school and create so much animosity in the process, but Mr Newell appears to have accomplished this unique political feat.
Last Monday I attended a community protest calling for the reopening of the Casino to Murwillumbah rail line. The Minister for Transport was scheduled to speak at a forum in Byron Bay. To reach the venue, he 19 October 2005 LEGISLATIVE COUNCIL 18883 had to cross the railway tracks—a perfect spot at which to convey our message. The Minister complied with usual Sydney on time running: by that I mean he was 45 minutes late. He arrived in a big white car bearing Queensland number plates. The car slowed as it crossed the tracks. The mainly elderly protestors in straw hats had waited ever so patiently for the Minister. They cheered when they saw the car, and began waving bunches of red balloons. The mood inside the car was obviously very different from that. The Minister and his young, attractive female driver looked decidedly grim as the car accelerated and approached our small group at speed, forcing everyone off the road.
I had expected the Minister to stop his car and say hello to the protestors—and even apologise for making us wait for so long—but instead he burst through and zoomed off as if he was some kind of James Bond character who was eluding an army of trained assassins. The Minister seems unable to distinguish between a trained killer and a North Coast retiree. He must learn the difference because ministerial vehicles approaching at speed pose a lethal threat to our community. I doubt that any Minister would intentionally run over an elderly protestor in a straw hat who is waving balloons and smiling. But had any of our protestors been less nimble, that is exactly what could have happened. So there we have it—a Labor Minister who totally overreacts, and a Labor member of Parliament who does not react at all. When, if ever, will this Government take the time and interest to understand the character and needs of the far North Coast?
PREVENTATIVE DETENTION
The Hon. PETER BREEN [10.27 p.m.]: The Federal Government's draft anti-terrorism bill is on the Internet and bears the following notation on the front page:
This draft is supplied in confidence and should be given appropriate protection.
I fear that the next victim of the war on terror will be the English language. Whoever heard of draft legislation to be debated in Parliament needing protection? Another concept that once had meaning in the English language is preventative detention. Ever since the Magna Carta of 1215 the English constitutional system has recognised that preventative detention is alien to the rights of subjects. To place a person in prison for something they might do in the future was so abhorrent that English judges developed the writ of habeas corpus. How ironic that the Federal Government now uses the aliens power in the Commonwealth Constitution to justify preventative detention, effectively nullifying habeas corpus as a restraint on executive power. In the 2004 High Court decision of Al-Kateb, the High Court by a majority of four to three endorsed the power of the Federal Government to hold a person in preventative detention for so-called protective purposes. Justice McHugh concluded:
The Parliament is entitled to protect the nation against unwanted entrants by detaining them in custody.
Michael Head, writing in the Alternative Law Journal of April 2005, said that McHugh's remarks in the High Court were more like a political speech than a judgment, using language such as "protection of the community from undeserved infiltration". Justice McHugh drew a distinction between protective detention and punitive detention, bending the English language in a way that even Uri Geller could not have imagined. In a recent speech, as reported by Michael Pelly in the Sydney Morning Herald, Justice McHugh lamented the fact that judges were being called upon "to reach legal conclusions which have tragic consequences". This appeared to be a clear reference to the Al-Kateb decision, where His Honour described the circumstances of Ali Al-Kateb, a stateless Palestinian refugee, as tragic.
Had Justice McHugh made a different decision, the Government would have been obliged to release Mr Al-Kateb from detention, and "tragic" would not have been a word to describe the decision or the prisoner's circumstances. In a world where language is treated with respect, His Honour would have been appalled by Mr Al-Kateb's tragic circumstances and done something about them in his decision. Justice McHugh says he cannot help a person in tragic circumstances such as Ali Al-Kateb because there is no bill of rights in Australia. This is simply an abdication of moral responsibility by the judge. As I have said in this House on another occasion, Justice McHugh has attracted particular criticism for upholding international law in academic circles while taking a different view from the High Court bench. In the Al-Kateb case His Honour left on hold his extra curial assertions that the Australian Constitution protects due process rights to decide with his conservative brother judges that the Executive Government has the power of indefinite detention over stateless refugees.
The time has arrived for judicial recognition of an obligation to construe domestic law in conformity with international human rights principles. Australia is part of a world community and our economic activity is regulated by global markets. Recently we moved to a national legal system and all the major law firms operate 18884 LEGISLATIVE COUNCIL 19 October 2005 from offices inside and outside the country. What we need in Australia is a common law human rights jurisdiction. I am constantly amazed that we are prepared to adopt multilateral trade and commerce arrangements as the price of living in a global village, yet we ignore treaties involving human rights and the environment. There is a large body of international treaty law that High Court judges could draw on when applying the rule of law in Australia and they fail to do so with monotonous regularity. Increasingly, the result will be decisions such as the Al-Kateb case, which turned the English language and the ordinary meaning of words into judge speak.
There was a time when judges had a positive role to play in protecting human rights, especially when the interests of the Executive Government were best served by allowing those rights to be eroded. Common law rights need to be strengthened and given legitimacy by judges when politicians fail to recognise those rights in their pursuit of populist policies. Justice McHugh has not served the people of Australia by holding out for a bill of rights when all the laws he needed to apply human rights principles were there at his disposal in the important treaties to which Australia is a party. Justice McHugh says in Michael Pelly's Sydney Morning Herald article that Australia's legal system is seriously inadequate in protecting the rights of the most vulnerable and disadvantaged groups in our society. The implication here is that judges cannot help the vulnerable and disadvantaged without a bill of rights. If judges had the will to help the poor, they could do so every day of the week. [Time expired.]
EMPLOYEE ENTITLEMENTS
The Hon. PETER PRIMROSE [10.22 p.m.]: In November 1998 one of the country's biggest bus and coach manufacturers collapsed, leaving more than 750 workers not only out of work but also without their entitlements. The company's directors had used their employees entitlements as a cash cow to prop up their floundering company. Worse, the company had also siphoned off the workers' payroll deductions, including child support payments, health fund deductions and mortgage payments. The workers were owed more than $12 million in entitlements, as well as the missing personal deductions. In New South Wales the company's plant was in the regional city of Tamworth. In addition to losing their jobs, their life savings in the form of their entitlements and being left in arrears on their mortgages and child support, they also had little prospect of finding new employment!
This was all happening in the heady days of the collapse of National Textiles, but the workers there had an advantage. Although they lost their jobs and entitlements, they did have the good fortune to have been employed by the Prime Minister's older brother. A special package was put together for those workers, and their entitlements were reimbursed before any legal action could be taken against Stan Howard. Not all workers can be that lucky. I have spoken on many occasions in this House about the problem of lost workers entitlements. I have spoken of the tragedies of the broken marriages, the nervous breakdowns, lost homes and the suicides that occur when people lose everything through no fault of their own.
In the case of Austral Pacific-Clifford Corp, John Barry Loiterton, a former director of the company, has finally been gaoled for three years for his part in the company's collapse. He was found guilty of misleading the Australian Stock Exchange. His colleague, Ian Robert Hall, was also gaoled for 12 months for using insider information to sell shares in the company to protect his million dollar family trust while a director of Clifford. At the same time, the employees entitlements and personal deductions were callously being siphoned off. Not too many million dollar family trusts were being operated by Clifford's employees.
It has taken seven years to finally see some justice in this appalling saga. Of course, it is far too late for many of the employees of Austral Pacific. They can never hope to make up for what was stolen from them. The union movement, led by the Australian Manufacturing Workers Union, has been campaigning for years for corporate law reform to protect Australian workers such as those at Cliffords. However, the Federal Government has been steadfastly opposed to this and has refused to listen because it said ethics would be bad for business. The same Federal Government that refuses to reform corporations legislation to protect Australian workers is about to use its corporations powers to impose the most dramatic and damaging workplace reforms ever seen in this country.
This legislation is almost universally opposed by churches, community groups, international organisations and, of course, Australian workers, represented by their unions. In the years that I have been honoured to represent the Australian Labor Party, I have been approached by scores of workers and their families asking for help when they have been the victims of unscrupulous employers such as Cliffords or victims of Hardies. However, I have never been approached by an Australian worker or their family asking for 19 October 2005 LEGISLATIVE COUNCIL 18885 their union to be crushed. While we represent the same people, it seems that the Federal member for Macarthur, Pat Farmer, has had a very different experience from my own.
While the honourable member for Camden, Geoff Corrigan, and I have been overwhelmed by tragic stories told to us by workers and their familles at the hands of rogue employers, Macarthur member of Parliament Pat Farmer and his Liberal Party colleagues have been ruthlessly exploiting their new Senate majority to crush the same unions that have been working to protect workers and help them to piece their lives back together after disasters such as Cliffords and Hardies. I am not sure who Pat Farmer has been listening to, but it certainly is not the people of Macarthur. It is time Pat Farmer—who was recently promoted to Parliamentary Secretary in the Howard Government—stopped running and started listening to his constituents instead of the Liberal Party spin doctors. Families in Macarthur are going to be hurt by Pat Farmer.
Motion agreed to.
The House adjourned at 10.27 p.m. until Thursday 20 October 2005 at 11.00 a.m. ______